Laxman Singh Khati vs State of Up and Another

This revision has been filed against the order dated 10.07.2025 passed by the learned Chief Judicial Magistrate, Gautam Budh Nagar, in Case No. 24018 of 2021, State v. Laxman Singh Khati, under Sections 354A I.P.C., Police Station Sector-20, District Gautam Budh Nagar, whereby the learned Chief Judicial Magistrate has rejected the discharge application moved by the revisionist.

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Brief facts of the prosecution case are that an F.I.R. bearing No. 613 of 2019 under Section 354A I.P.C. was registered against the revisionist alleging therein that in the midnight of 8/9.06.2019, when the first informant was sleeping in her room, she listened the sound of knocking of door, she opened the door and found that the revisionist was there in the state of intoxication and he tried to outrage her modesty. During investigation, the Investigating Officer recorded the statement of informant under Section 161 Cr.P.C. on 09.06.2019 in which she repeated the F.I.R. version. After completion of investigation, a charge-sheet under Section 354A I.P.C. was filed against the revisionist. The revisionist filed Application u/s 482 Cr.P.C. No. 26610 of 2022 before this Court challenging the said charge-sheet and the same was dismissed by this Court vide order dated 12.09.2022. Thereafter, the revisionist filed a discharge application before the Trial Court

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and the learned Trial Court dismissed the discharge application vide its order dated 10.07.2025. Feeling aggrieved, this revision has been filed.

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It is submitted by the learned Counsel for the revisionist that when the informant was called to record her statement under Section 164 Cr.P.C., she did not come for recording her statement which shows doubt in his case. After recording the statement of the informant under Section 161 Cr.P.C. the Investigating Officer filed a charge sheet under Section 354A I.P.C., whereas in the case of Section 354A I.P.C., recording of statement of the victim under Section 164 Cr.P.C. is mandatory as per provisions of law. Therefore, the impugned order may be set-aside and the revision may be allowed.

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Per contra , it is submitted by learned A.G.A. that the learned Trial Court has not committed any error in rejecting the discharge application because the Investigating Officer recorded the statement of victim-informant under Section 161 Cr.P.C., though the statement of victim under Section 164 Cr.P.C. has not been recorded. There is no provision that no charge-sheet against any person can be filed without recording the statement of victim under Section 164 Cr.P.C. Hence, this revision is liable to be dismissed.

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Sections 239 Cr.P.C. and 240 Cr.P.C read as under:

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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 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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240. Framing of charge. (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

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2) The charge shall then be read and explained to the accused, and he shall

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be asked whether he pleads guilty of the offence charged or claims to be tried."

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As per aforesaid Section, if, upon considering the police report and the documents sent with it under section 173 Cr.P.C. and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge, he shall discharge the accused, it means at the time of passing of an order on application filed under Section 239 Cr.P.C. only the police report and the document submitted along with it would be taken into consideration.

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In respect of warrant cases triable by Magistrates, instituted on police report, Sections 239 Cr.P.C. and 240 Cr.P.C. are the relevant statutory provisions. Section 239 Cr.P.C. requires the Magistrate to consider on the Police report and the documents sent with it under Section 173, and, if necessary, examine the accused after giving him an opportunity of being heard, if Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording the reason thereof.

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As per settled provision of law, at the stage of framing of charge, it is not obligatory for the Judge 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. 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, at the initial stage of framing of charge, is sufficient to frame the charge and at that event, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

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It is worth mentioning that the Code contemplates discharge of the accused by the Court of Sessions under Section 227 Cr.P.C. in a case triable by it; cases instituted upon a police report are covered by Section 239 Cr.P.C. and cases instituted otherwise then on a police report are dealt with in Section 245 Cr.P.C. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused. Under Section 227 of the Code, the Trial Court is required to

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discharge the accused if it considers that there is not sufficient ground for proceeding against the accused. However, discharge under Section 239 Cr.P.C. can be ordered when the Magistrate considers the charge against the accused to be groundless. The power to discharge is excercisable under Section 245(1) Cr.P.C. when, the Magistrate considers, for reason to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction.

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Section 227 Cr.P.C. and Section 239 Cr.P.C. provide for discharge before the recording of the evidence on the basis of police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245 Cr.P.C., on the other hand, is reached only after the evidence referred in Section 244 Cr.P.C. has been taken.

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Thus, there is difference in the language employed in these provisions. But, notwithstanding these differences, and whichever provision may be applicable, the Court is required at this stage to see that there is a prima facie case for proceedings against the accused.

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In case the application filed by the accused under Section 239 Cr.P.C.is dismissed, and if the Court, upon consideration of police report and the documents sent with it under Section 173 Cr.P.C. and on hearing the accused and prosecution, is of opinion that there is good ground for presuming that the accused has committed an offence, it shall frame the charge against the accused.

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In the present case, an F.I.R. bearing Case Crime No. 613 of 2019 was registered against the revisionist under Section 354A at Police Station Sector-20, Gautam Budh Nagar and during investigation, statement of informant was recorded by the Investigating Officer under Section 161 Cr.P.C. After completion of investigation, a charge-sheet was filed against the accused under Section 354A I.P.C. The revisionist filed an application under Section 239 Cr.P.C. but the same was dismissed by the learned Chief Judicial Magistrate with an opinion that a prima facie case is made out against the revisionist.

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The main argument of the learned Counsel for the revisionist is that if a

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case is registered against any person under Sections 354A I.P.C., without recording the statement of the victim under Section 164 Cr.P.C., no charges can be framed against the revisionist.

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The relevant part of sub-section 5-A of Section 164 Cr.P.C. reads:

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"....(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB,] section 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police."

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The aforesaid section describes the procedure in case any victim of the above mentioned case is produced before the concerned Magistrate for recording her statement under Section 164 Cr.P.C. It is nowhere mentioned that in case no statement of victim is recorded under Section 164 Cr.P.C. or the victim does not appear before the Magistrate for recording her statement, no charge-sheet can be filed against the accused. In the present case statement of victim was recorded under Section 161 Cr.P.C. in which she supported the prosecution story but she did not appear before the Magistrate for recording her statement under Section 164 Cr.P.C. The arguments of learned Counsel for the revisionist has no force because there is no requirement under law that in each case statement of victim must be recorded under Section 164 Cr.P.C. if a case is registered against any person under Sections 354A I.P.C. The Statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. have the same evidential value. The impugned order reveals that learned Trial Court has not committed any illegality in framing the charges against the revisionist, thus, the present revision is liable to be dismissed.

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Accordingly, the instant criminal revision is dismissed .

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(Chawan Prakash,J.)

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January 13, 2026 Vijay

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Digitally signed by :- VIJAY KUMAR SAHU High Court of Judicature at Allahabad

Laxman Singh Khati v. State of Up and Another

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Laxman Singh Khati v. State of Up and Another

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