Pradeep Nishad Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRR No. 664 of 2025

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1 - Pradeep Nishad S/o Shri Rajendra Kumar Nishad Aged About 24 Years R/o Quarter No. B-42, Nala Haat Lafarge Arasmeta, P.S. Mulmula, DistJanjgir-Champa (C.G.)

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--- Petitioner(s)

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versus

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1 - State Of Chhattisgarh Through P.S. Akaltara, Dist- Janjgir-Champa (C.G.)

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--- Respondent(s)

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CRR No. 1107 of 2025

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1 - Pradeep Nishad S/o Shri Rajendra Kumar Nishad Aged About 24 Years R/o Quarter No. B-42, Nala Haat Lafarge Arasmeta, P.S. Mulmula, Distt.Janjgir-Champa (C.G.)

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--- Petitioner(s)

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Versus

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1 - State Of Chhattisgarh Through P.S. Akaltara, Distt.- Janjgir-Champa (C.G.)

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... Respondent(s)

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(Cause title taken from Case Information System)

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For Petitioner(s) : Mr. Ravindra Sharma, Advocate For Respondent(s)/State : Mr. Karan Kumar Baharani, Panel Lawyer.

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VED PRAKASH DEWANGAN

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Digitally signed by VED PRAKASH DEWANGAN Date: 2025.10.13 18:55:55 +0530

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Hon'ble Shri Justice Ravindra Ku mar Agrawal

Order on Board

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10/10/2025

These two criminal revisions are arising out of the same crime number and same sessions trial, therefore, they are being heard and decided together.

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The CRR No. 664 of 2025 filed by the petitioner against the order dated 09.04.2025, passed by learned Special Additional Sessions Judge (POCSO Act), Janjgir, District Janjgir-Champa, in Special Sessions Case No. 116 of 2024, whereby the charge under Section 67 of the Information Technology Act, 2000 has been framed.

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The CRR No. 1107 of 2025 filed by the petitioner against the order dated 23.07.2025, passed by learned Special Additional Sessions Judge (POCSO Act), Janjgir, District Janjgir-Champa, in Special Sessions Case No. 116 of 2024, whereby the additional charge under Section 14(1) of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) has been framed.

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The subject matter in brief in both these revisions are that, the petitioner is an accused in Crime No. 17 of 2024, registered at police station Akaltara, District Janjgir-Champa for the offence under Section 67-A and 67-B of the Information Technology Act, 2000. The FIR was registered on 07.01.2024 on the information received by the Superintendent of Police, Janjgir-Champa from the office of Additional Superintendent of Police, Crime/ACCU, Raipur, dated 11.11.2023. It is alleged in the said communication dated 11.11.2023 with respect to the offences against women and children, under the

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CCPWC scheme of the Central Government, Department of Home, the inquiry was going one and from Cyber Tip Line received from NCRB branch, New Delhi in the office of Additional Superintendent of Police, Crime/ACCU, Raipur in their authorized e-mail. Serial No. 38 of the said e-mail, it is alleged that the suspect of tip line No. 118879027 has uploaded the UTC through Instagram on 03.01.2022 at 04.00.32 hrs, and at 04.00.59 hrs, the login IP address 2401:4900:51e8:fac:4229:e2f8:fa8:992f was given. The timing of the said login IP was converted into IST and the information was obtained from service provider company, in which the said login IP was found activated and its tower location was found at Lafarge India Pvt. Ltd., Post Office Raseda, Bilaspur-Amora Lafarge, JanjgirChampa (C.G.) and connected the mobile number 6260296793. On being information collected from the service provider company, it was found that the said mobile number is owned by Sanjeev Nishad son of Rajendra Kumar Nishad, resident of B-42, Gopal Nagar, Parsada, Janjgir-Champa (C.G.) PIN 495553. During the investigation, Sanjeev Nishad was apprehend and he disclosed that the said mobile number 6260296793 is using by his brother Pradeep Nishad since 3-4 years. The mobile phone has been seized from the petitioner having its IMEI No. 863287044198934 and 863287044198942. The mobile phone was sent for its forensic examination to Cyber Cell and the CD received by the police from NCRB branch, New Delhi was examined by the Cyber Cell and view panchnama was prepared and after completion of usual investigation, charge sheet was filed against the petitioner for the offence under Sections 67-A and 67-B of IT Act, 2000.

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The learned trial Court initially framed charge under Section 67 of IT Act on 09.04.2025 and subsequently additional charge of Section 14(1) of POCSO Act have been framed on 23.07.2025. These two orders of framing of charge as well as charge memo are under challenge in these two criminal revisions.

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Learned counsel for the petitioner would submit that, the petitioner is innocent and has not committed any offence. In order to bring home the charges under Section 14 of the POCSO Act, it has to be established by the prosecution that the person has directly participating in pornographic acts or used the child for any pornographic purposes. In the present case, there is no material in the charge sheet that any child has been used by the petitioner for the said purpose and there is no prima facie evidence to that effect to frame charge. He would also submit that from the analysis of mobile phone of the petitioner, no any obscene videos or photos were extracted to attract the offence of Sections 67-A or 67-B of IT Act, 2000. There is absolutely no material in the entire charge sheet to frame charge against the petitioner. He would further submit that there is no connection of the mobile phone allegedly seized from the petitioner is used in uploading any obscene contents in the internet. In absence of any prima facie evidence, no charges can be framed and the petitioner cannot be compelled to face trial for the alleged offence. Therefore, the charges framed by the learned trial Court may be quashed and the petitioner may be discharged.

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On the other hand, learned counsel appearing for the State opposes and submitted that, in the present case, there are sufficient prima facie evidence to frame the charge against the petitioner and to proceed with the trial of the case. During the investigation, it was found that the mobile number 6260296793 is being used in uploading the obscene contents in the internet and the said mobile phone was used by the petitioner. From the view panchnama of the CD sent along with the complaint from tip line, the obscene contents were found and through the electronic evidence from Cyber Cell, the involvement of the mobile phone of the petitioner is found. Although, the deleted data from the mobile phone could not be recovered, however the uploading of the obscene contents from the said mobile phone is found in from the Cyber examination report, therefore, there is no merit in the petition and the same are liable to be dismissed.

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I have heard learned counsel for the parties and perused the material annexed with the present revisions as well as case diary.

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Before considering the case of the petitioner, the provisions of Sections 67-A and 67-B of the Information Technology Act, 2000 and Section 14 of the POCSO Act is necessary to be considered, which are as under:-

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The Information Technology Act, 2000

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“ 67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form .–Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may

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extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

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67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form .–Whoever,–

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(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or

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(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or

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(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or

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(d) facilitates abusing children online, or

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(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,

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shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:

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Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form–

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(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting representation or figure is the interest of science, literature, art or learning or other objects of general concern; or

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(ii) which is kept or used for bona fide heritage or religious purposes.

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Explanation–For the purposes of this section, ―children‖ means a person who has not completed the age of 18 years.”

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Protection of Children from Sexual Offences Act, 2012

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[ 14. Punishment for using child for pornographic purposes .—

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(1) Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.

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(2) Whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to in section 3 or section 5 or section 7 or section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under section 4, section 6, section 8 and section 10, respectively, in addition to the punishment provided in sub-section (1).]

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10. The ‘ child pornography ’ has been defined under Section 2(da) of

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the Protection of Children from Sexual Offences Act, 2012, which reads as under:-

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“ Section 2(da) :- “ child pornography ” means any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child;]”

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The allegation against the present petitioner is that, he uploaded the obscene contents in the internet through his mobile phone No. 6260296793. When the information received by the Superintendent of Police, through proper channel from Cyber tip line report

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118879027 and when the view panchnama was prepared from the CD annexed with the said tip line report, it was found that there is obscene contents of dancing a nude lady. On being investigation through Cyber aspects, it was found to be uploaded by the said mobile number on 03.01.2022 at 04:00:32 hrs and as per its tower location it was found to be at Lafarge India Pvt. Ltd., Janjgir, District Janjgir-Champa. In the notice of Section 91 of CRPC, the brother of the petitioner made a declaration that the said mobile number 6260296793 is using by his brother Pradeep Nishad since 3-4 years. Although from the mobile phone, the data could not be extracted, as the same was deleted, yet there are prima facie sufficient material in the charge sheet to frame charge and to proceed with the trial of the case.

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The law laid down by the Hon'ble Supreme Court with respect to framing of charge has been settled by various judgments.

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At the stage of framing of charge, the Hon’ble Supreme Court has laid down the principles in the case of “ State of M.P. vs. Deepak” 2019 (13) SCC 62, wherein the Hon’ble Supreme Court has held that at the stage of framing of charge, the court has to consider the material only with a view to find out if there is a ground for presuming that the accused had committed the offence. It is also held that the court is required to evaluate the material and documents on record with a view to finding out if facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence and at the stage of framing charge, the court is

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not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence recorded is likely to be convicted or not. In the matter of Deepak (Supra), in its judgment, the Hon’ble Supreme Court has held that:-

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“14. It is of relevance to refer to certain judgments of this Court. In Chitresh Kumar Chopra v. State (NCT of Delhi), the appellant and two other individuals were charged under Section 306 read with Section 34 of the Penal Code. It had been alleged that the appellant and the other accused persons had forcibly compelled the deceased to sign a settlement giving up a part of his share in the profits from the sale of certain land. This led to a dispute and as a result of the mental harassment suffered by the deceased, he committed suicide. The Court affirmed the framing of charges by the trial court. The two-Judge Bench of this Court laid down the ingredients of the offence of abetment of suicide. D.K. Jain, J. held thus: (SCC p. 611, para 19)

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"19. As observed in Ramesh Kumar v. State of Chhattisgarh, where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:

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(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and

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(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above Undoubtedly, presence of mens rea is the necessary concomitant of instigation." (emphasis supplied)

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15. After due consideration of the facts and circumstances, the Court noted that prima facie, the offence of abetment of suicide was made out (Chitresh Kumar Chopra case, SCC p. 612, para 22)

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"22. In the present case, apart from the suicide note, extracted above, statements recorded by the police during the course of investigation, tend to show that on account of business transactions with the accused, including the appellant herein, the deceased was put under tremendous pressure to do something which he was perhaps not willing to do. Prima facie, it appears that the conduct of the appellant and his accomplices was such that the deceased was left with no other option except to end his life and therefore. clause Firstly of Section 107 IPC was attracted." (emphasis supplied)

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16. It was also noted that at the stage of framing of charges, the Court has to consider the material only with a view to find out if there is a ground for "presuming" that the accused had committed the offence: (Chitreth Kumar Chopra case, SCC p. 613, para 25)

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"25. 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, disclose the existence of all the ingredients constituting the alleged offence or offences For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction"

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17. A two-Judge Bench of this Court, in Rajbir Singh v. State of U.P noted that in accordance with Section 227, the High Court must ascertain whether there is "sufficient ground for proceeding against the accused of there is ground for "presuming that the offence has been committed. G.P. Mathur. J. held thus: (SCC p. 56, paras 9-10)

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"9. In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia the Court while examining the scope of Section 227 held as under:

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'14. Section 227 itself contains enough guidelines as to the scope of inquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate inquity in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evadentiary material on record, if generally accepted, would reasonably connect the accused with the crime.

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10. The High Court, did not at all apply the relevant text, namely whether there is sufficient ground for proceeding against the accused or whether there is ground for presuming that the accused has committed as offence. If the answer is in the affirmative an order of discharge cannot be passed and the accused has to face the trial. The High Court after merely observing that 'as the firing was aimed at the other persons and accidentally the deceased Pooja Balmiki was passing through that way and she was hit and further observing that the applicant neither intended to kill the deceased nor was she aimed at because of the reason that she was a Scheduled Caste set aside the order by which the charges had been framed against Respondent 2. There can be no manner of doubt that the provisions of Section 301 IPC have been completely ignored and the relevant criteria for judging the validity of the order passed by the learned Special Judge directing framing of charges have not been applied. The impugned order is, therefore, clearly erroneous in law and is liable to be set aside." (emphasis supplied)

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In the matter of “ Manjit Singh Virdi vs. Hussain Mohammad Shattaf ” 2023 (7) SCC 633, the Hon’ble Supreme Court has held in para 12 of its judgement that:-

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“12. The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap³ Relevant paras are extracted below: (SCC pp. 197-98, para 11)

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"11....11.1. In P. Vijayan v. State of Kerala, this Court had an occasion to consider Section 227 CrPC. What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed. he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter s the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

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11.2 to the recent decision of this Court in State of Karnataka v. MR. Memah, one of us (D. Y. Chandrachud, J) speaking for the Bench has observed and held in para 25 as under: (SCC p. 526)

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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 219 CPC. 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

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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 State of N. v. N. Suresh Rajan, adverting to the earlier decisions on the subject, this Court held: (N. Suresh Rajan case, SCC 721-22, para 20)

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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 the offence on t committed the 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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Further, in the matter of “ State by SP through the SPE, CBI vs. Uttamchand Bohra ”, 2022 (16) SCC 663, the Hon’ble Supreme Court has held in para 21 of its judgement that:-

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“21. In CBI v. K. Narayana Rao this Court, after reviewing the previous decisions that dealt with the question of the applicable standard relating to discharge of accused in a criminal case, summarised the principles in the following terms: (SCC pp. 520-23, paras 12-14)

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"12. The first decision in Ramesh Singh relates to interpretation of Sections 227 and 228 of the Code for the considerations as to discharge the accused or to proceed with trial. Para 4 of the said judgment is pressed into service which reads as under: (SCC pp. 41-42)

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'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 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

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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 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.'

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13. Discharge of the accused under Section 227 of the Code was extensively considered by this Court in P. Vijayan wherein it was held as under. (SCC pp. 401-402, paras 10-11)

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'10... ..If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for

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proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact. It is not necessary for the court to enter into the pros and cons of the matter of into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

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11. At the stage of Section 227, the Judge has merely to sift the 9 evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."

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14. While considering the very same provisions i.e. framing of charges and discharge of the accused, again in Sajjan Kumar, this Court held thus: (SCC pp. 375-77, paras 19-21)

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'19. It is clear that 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 only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves 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.

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20. A Magistrate enquiring into a case under Section 209 CrPC is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction under Section 227 CrPC, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

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Exercise of jurisdiction under Sections 227 and 228 CrPC

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21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

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(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.11

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(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

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(iii) The court cannot act merely as a post office or a a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total

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effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

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(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

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(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

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(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face valuc disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

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(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."

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In the case of “ N. Sundaram Vs. P.K. Pounraj and Another ” reported in (2014) 10 SCC 616, the Hon’ble Supreme Court, in paragraph 13, has held that:

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“13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana Vs. Bhajan Lal6] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC. [See MCD Vs. Ram Kishann Rohtagi if the allegations have some substance.” [See Vinod Raghuvanshi Vs. Ajay Arora]”

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The Hon’ble supreme Court has further held in para 12 of its judgment in the case of “ State of Gujarat vs. Dilipsinh Kishorsinh Rao ”, 2023 SCC Online SC 1294, that:-

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“12. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 CrPC is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.”

¶122

In the matter of “ State (NCT of Delhi) vs. Shiv Charan Bansal and Others ”, 2020 (2) SCC 290, the Hon’ble Supreme Court has held that at the stage of framing of charge, the trial court is not required to conduct a meticulous appreciation of evidence or a roving inquiry into the same and has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused to proceed with the trial.

¶123

20

¶124

From the material annexed with the charge sheet as well as in view of the aforesaid judgments passed by the Hon'ble Supreme Court and also under the facts and circumstances of the present case, it appears that there are allegation against the petitioner that he uploaded the obscene contents in the internet through his mobile phone, which comes under the definition of ‘child pornography’. The relevant reports obtained from the Cyber Cell further connects the petitioner with the alleged offence. There are sufficient ground for framing of charge and to proceed with the trial for the offence under Section 67 of IT Act and Section 14(1) of the POCSO Act. Section 239 of BNSS, 2023 (Section 216 of CRPC) empowered the trial Court to alter/add to any charge at any time before the judgment is pronounced, and thereby, framing of additional charge under Section 14(1) of POCSO Act cannot be said to be illegal. Accordingly, this Court does not find any scope for interference in the present criminal revisions by invoking the provisions under Sections 438 and 442 of the BNSS, 2023 conferred upon this Court.

¶125

Consequently, both these criminal revisions are hereby dismissed . The interim order granted earlier stands vacated.

¶126

A copy of this order shall be forwarded to the learned trial Court for information and necessary proceedings.

¶127

Sd/- (Ravindra Kumar Agrawal) Judge

¶128

ved

Pradeep Nishad v. State of Chhattisgarh

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Pradeep Nishad v. State of Chhattisgarh

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