NAGENDRA GUPTAversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 17695 of 2026

Nagendra Gupta
                                                             .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                 .....Opposite
                                                                       Party(s)

Counsel for Applicant(s)      : Parashuram         Barnawal,    Yakub      Ali
                                Ansari
Counsel for Opposite Party(s) : G.A.

Court No. - 80
                   HON'BLE VIVEK KUMAR SINGH, J.

1. Heard learned counsel for the applicant and learned A.G.A. appearing
for the State.

2. Present application under Section 528 BNSS has been filed for
quashing the impugned order dated 29.1.2026 passed by Additional
Session Judge / F.T.C.-Ist, Kushinagar at Padrauna, whereby the
discharge application of the applicant filed in Case No. 6640 of 2025
(Session Trial No. 1735 of 2025) (State vs. Nagendra Gupta) arising out
of Case Crime No. 42 of 2025, under Sections 64, 351(3) BNS, Police
Station Nebua Naurangiya, District Kushinagar.

3. It is submitted by the learned counsel for the applicant that a false first
information report was lodged against the applicant on 22.1.2025 in
respect of alleged incident dated 17.1.2025, under Sections 74, 351(3)
BNS. The victim is a married lady and no such incident as alleged by her
in the first information report had take place. False statement was given
by the victim that she was dragged by the applicant in a sugarcane field,
wherein offence of molestation was done by him. There is no independent
witness supported prosecution case. The Investigating Officer without
conducting fair investigation submitted a wrong charge-sheet against the
applicant. The applicant was not present at the place of occurrence when
the alleged offence was committed rather he was present in his shop,
which is 18 kms away from the place of occurrence. The applicant moved
an application along with CCTV footage mentioning therein that he was
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present in his shop, therefore, he may be discharged in this case. The
application moved by the applicant under Section 227 Cr.P.C. / 250
B.N.S.S. has been wrongly rejected by the learned trial court vide order
dated 29.1.2026.

4. Per contra, learned A.G.A. opposed the prayer and submitted that it is
the defence of the applicant that he was not present at the place of
incident and he will get an opportunity before the learned trial court to
prove his plea of alibi at the appropriate stage. The CCTV footage cannot
be seen at the stage of framing of charge. Therefore, the application dated
17.11.2025 no. 5-Kha was rightly rejected by the learned trial court vide
order dated 29.1.2026 since a prima facie offence is made out from
perusal of the first information report as well as statements of the victim
recorded during the course of investigation.

5. I have heard rival submissions of learned counsel for the parties and
have perused the record.

6. On perusal of statements of the victim recorded during the course of
investigation, it is manifest that a prima facie offence is made out against
the applicant since the victim alleged that she was dragged by the
applicant in a sugarcane filed, where she was subjected to rape by the
applicant.

7. Now, this Court will examine the contention of the applicant, i.e.,
whether the evidence, led by the prosecution during course of
investigation, is sufficient to proceed against the applicant or they may be
discharged at this stage. In order to appreciate rival contentions, the
relevant provision of Cr.P.C. and B.N.S.S. may be adverted to.

8. The procedure for trial before a court of session is provided under
Chapter XVIII of the Cr.P.C. and Sections 227 and 228 Cr.P.C., which
relate to discharge and framing of charges are extracted below:-

     "227. 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
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     discharge the accused and record his reasons for so doing.

     228. Framing of charge.--(1) If, after such consideration and hearing as
     aforesaid, the Judge is of opinion that there is ground for presuming that
     the accused has committed an offence which--

           (a) is not exclusively triable by the Court of Session, he may,
           frame a charge against the accused and, by order, transfer the
           case for trial to the Chief Judicial Magistrate, or any other
           Judicial Magistrate of the first class and direct the accused to
           appear before the Chief Judicial Magistrate, or, as the case
           may be, the Judicial Magistrate of the first class, on such date
           as he deems fit,and thereupon such Magistrate shall try the
           offence in accordance with the procedure for the trial of
           warrant-cases instituted on a police report;

           (b) is exclusively triable by the Court, he shall frame in
           writing a charge against the accused.

     (2) Where the Judge frames any charge under clause (b)of sub-section
     (1),the charge shall be read and explained to the accused and the accused
     shall be asked whether he pleads guilty of the offence charged or claims
     to be tried."

9. Now, the procedure for trial before a court of sessions is provided
under Chapter XIX of the BNSS and Section 250 and 251 of the BNSS
are relating to discharge and framing of charge, which are reproduced
hereunder:-

     "250. Discharge.-(1) The accused may prefer an application for discharge
     within a period of sixty days from the date of commitment of the case
     under Section 232.

     (2) 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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     251. Framing of charge. (1) If, after such consideration and hearing as
     aforesaid, the Judge is of opinion that there is ground for presuming that
     the accused has committed an offence which-

               (a) is not exclusively triable by the Court of Session, he may,
               frame a charge against the accused and, by order, transfer the
               case for trial to the Chief Judicial Magistrate, or any other
               Judicial Magistrate of the first class and direct the accused to
               appear before the Chief Judicial Magistrate, or the Judicial
               Magistrate of the first class, on such date as he deems fit, and
               thereupon such Magistrate shall try the offence in accordance
               with the procedure for the trial of warrant-cases instituted on
               a police report;

               (b) is exclusively triable by the Court, he shall frame in
               writing a charge against the accused within a period of sixty
               days from the date of first hearing on charge.

     (2) Where the Judge frames any charge under clause (b) of sub-section
     (1), the charge shall be read and explained to the accused present either
     physically or through audio-video electronic means and the accused shall
     be asked whether he pleads guilty of the offence charged or claims to be
     tried."

10. The prerequisites for framing of charge were subject matter of
consideration in Soma Chakravarty vs. State through CBI, reported in
(2007) 5 SCC 403, and it was held that the court can frame the charge if
on the basis of material on record it can form an opinion that the
commission of offence by the accused was possible. The question as to
whether the accused committed the offence can only be decided in the
trial, and at the stage of framing of charge the probative value of the
material on record cannot be gone into and the said material has to be
accepted as true. The paragraph no. 10 of Soma Chakravarty (supra) is
reproduced hereunder:-

     "10. It may be mentioned that the settled legal position, as mentioned in
     the above decisions, is that if on the basis of material on record the court
     could form an opinion that the accused might have committed offence it
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                                    5


     can frame the charge, though for conviction the conclusion is required to
     be proved beyond reasonable doubt that the accused has committed the
     offence. At the time of framing of the charges the probative value of the
     material on record cannot be gone into, and the material brought on
     record by the prosecution has to be accepted as true at that stage. Before
     framing a charge the court must apply its judicial mind on the material
     placed on record and must be satisfied that the commitment of offence by
     the accused was possible. Whether, in fact, the accused committed the
     offence, can only be decided in the trial."

11. The question as to when discharge of an accused would be warranted
in exercise of powers under Section 227 Cr.P.C. of the Code in the light
of its scope and object was considered in P. Vijayan vs. State of Kerala
and another, reported in (2010) 2 SCC 398, and it was held that at the
stage of Section 227 Cr.P.C., the Court has merely to sift the elements in
order to find out whether or not there is sufficient ground for proceeding
against the accused and if the judge comes to a conclusion that there is
sufficient ground to proceed, he will frame a charge under Section 228
Cr.P.C., if not, he will discharge the accused.

12. The scope of exercise of powers under Sections 227 and 228 Cr.P.C.
with regard to framing of charge/discharge again fell for consideration in
Sajjan Kumar Vs. Central Bureau of Investigation, reported in (2010)
9 SCC 368, and it was held that at the stage of framing of charge under
Section 228 or while considering discharge petition filed under Section
227 Cr.P.C., it is not for the Magistrate or a Judge concerned to analyse
all the materials including pros and cons, reliability or acceptability
thereof, and it is at the trial that the Judge concerned has to appreciate
evidentiary value, credibility or otherwise of the material and veracity of
various documents. The following principles were laid down by the
Hon'ble Supreme Court in paragraph no. 21:-

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

     (i) The Judge while considering the question of framing the charges under
     Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the
     evidence for the limited purpose of finding out whether or not a prima
                                                          NA528 No. 17695 of 2026
                               6


facie case against the accused has been made out. The test to determine
prima facie case would depend upon the facts of each case.

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.

iii) The Court cannot act merely as a Post Office or a mouthpiece of the
prosecution but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced before the Court,
any basic infirmities etc. However, at this stage, there cannot be a roving
enquiry into the pros and cons of the matter and weigh the evidence as if
he was conducting a trial.

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.

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.

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 value discloses 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.

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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                                   7


13. The relative scope and distinction between Sections 227 and 228
Cr.P.C. with regard to discharge of accused and framing of charge was
discussed and explained in detail in Amit Kapoor vs. Ramesh Chander
and another, reported in (2012) 9 SCC 460 and it was held that at the
stage of Section 228, the Court is not concerned with proof, but with a
strong suspicion that the accused has committed an offence and the final
test of guilt is not to be applied at the stage of framing of charge. It was
stated thus:-

     "15......................

     It was stated thus :-

     "17. Framing of a charge is an exercise of jurisdiction by the trial court in
     terms of Section 228 of the Code, unless the accused is discharged under
     Section 227 of the Code. Under both these provisions, the court is
     required to consider the ''record of the case' and documents submitted
     therewith and, after hearing the parties, may either discharge the accused
     or where it appears to the court and in its opinion there is ground for
     presuming that the accused has committed an offence, it shall frame the
     charge. Once the facts and ingredients of the section exists, then the court
     would be right in presuming that there is ground to proceed against the
     accused and frame the charge accordingly. This presumption is not a
     presumption of law as such. The satisfaction of the court in relation to the
     existence of constituents of an offence and the facts leading to that
     offence is a sine qua non for exercise of such jurisdiction. It may even be
     weaker than a prima facie case. There is a fine distinction between the
     language of Sections 227 and 228 of the Code. Section 227 is the
     expression of a definite opinion and judgment of the Court while Section
     228 is tentative. Thus, to say that at the stage of framing of charge, the
     Court should form an opinion that the accused is certainly guilty of
     committing an offence, is an approach which is impermissible in terms of
     Section 228 of the Code.

     ...................

     19. At the initial stage of framing of a charge, the court is concerned not
     with proof but with a strong suspicion that the accused has committed an
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                                    8


     offence, which, if put to trial, could prove him guilty. All that the court
     has to see is that the material on record and the facts would be compatible
     with the innocence of the accused or not. The final test of guilt is not to be
     applied at that stage."

14. In State of Tamil Nadu vs. N. Suresh Rajan and others, reported in
(2014) 11 SCC 709, while considering the scope of exercise of
jurisdiction and power by Court at the stage of framing of charges or
discharge of accused under Sections 227 and 228 Cr.P.C., it was restated
that no mini trial is contemplated at the stage of considering the discharge
application and only probative value of materials has to be gone into to
see if there is a prima facie case for proceeding against the accused
without any requirement of going deep into the matter.

15. The exercise of powers under Section 227 Cr.P.C. of the Code and the
matters to be considered and the extent of inquiry permissible on part of
Court was again subject matter of consideration in Asim Shariff vs.
National Investigation Agency, reported in (2019) 7 SCC 148, and it
was reiterated that the judge while considering the question of framing of
charge under Section 227 Cr.P.C. is 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 and the Court, at this stage, is not
supposed to hold a mini trial by marshalling the evidence on record. It
was held as follows:-

     "18. ...........

     "18. Taking note of the exposition of law on the subject laid
     down by this Court, it is settled that the Judge while considering
     the question of framing charge under Section 227 CrPC in
     sessions cases (which is akin to Section 239 CrPC pertaining to
     warrant cases) 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; where
     the material placed before the court discloses grave suspicion
     against the accused which has not been properly explained, the
     court will be fully justified in framing the charge; by and large if
     two views are possible and one of them giving rise to suspicion
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     only, as distinguished from grave suspicion against the accused,
     the trial Judge will be justified in discharging him. It is thus clear
     that while examining the discharge application filed under
     Section 227 CrPC, it is expected from the trial Judge to exercise
     its judicial mind to determine as to whether a case for trial has
     been made out or not. It is true that in such proceedings, the
     Court is not supposed to hold a mini trial by marshalling the
     evidence on record."

16. The relevant considerations to be made by the Court at the stage of
Section 227 Cr.P.C. of the Code were discussed in M.E.
Shivalingamurthy vs. Central Bureau of Investigation, Bengaluru,
reported in (2020) 2 SCC 768 and it was reiterated that the Court at this
stage, without making a roving inquiry into the pros and cons, is only
required to consider the broad probabilities and the probative value of
material on record is not to be gone into.

17. The ambit and scope of exercise of power under Sections 227 and 228
Cr.P.C. of the Code, are fairly well settled. It has been consistently held
that the standard of test and judgment which is to be finally applied before
recording of finding regarding the guilt or otherwise of the accused is not
exactly to be applied at the stage of framing of charge. The test to be
applied at this stage would be whether there is sufficient ground for
proceeding and not whether there is sufficient ground for conviction. The
Court has clearly to sift the elements in order to find out whether or not
there is sufficient ground for proceeding against the accused and if the
trial court comes to a conclusion that there is sufficient ground to proceed,
it will frame a charge under Section 228 Cr.P.C. of the Code, if not, it will
discharge the accused. At the stage of framing of charge or considering
discharge of the accused, no mini trial is contemplated and only probative
value of material has to be gone into, to see if there is a prima facie case
for proceeding against the accused.

18. In the case of State of Madhya Pradesh vs. Rakesh Mishra (2015)
13 SCC 8, the Hon'ble Supreme Court has held that only charge-sheet
along with the accompanying material is to be considered at the stage of
framing of charges, so as to satisfy whether a prima facie case is made out
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                                   10


against the accused. The relevant paragraph no. 7 of Rakesh Mishra
(supra) is reproduced hereunder:-

     "7. The major argument advanced by the State of Madhya Pradesh before
     us has been that the High Court traversed beyond the permissible limit
     while deciding the legality of order framing charges, being a pre-trial
     stage. Various authorities have been cited before us to prove that point.
     However, it would suffice to say that the law on this point is crystal clear
     that only charge-sheet along with the accompanying material is to be
     considered at the stage of framing of charges, so as to satisfy whether a
     prima facie case is made out. It has to be the subjective satisfaction of the
     Court framing charges. In our opinion, the High Court has only examined
     the material before it against the prevailing law to reach its conclusions.
     Thus, the impugned judgment may not be assailable on this ground."

19. In the case of State (By the Inspector of Police, Chennai vs. S. Selvi
and another (2018) SCC 455, the Hon'ble Supreme Court has held that
at the stage of consideration of an application for discharge, the court has
to proceed with the presumption that materials on record by the
prosecution are true and evaluate such material with a view to find out
whether the facts emerging therefrom taken at their face value disclose
existence of the ingredients of the offences. The relevant paragraph of S.
Selvi (supra) are reproduced hereunder:-

     "6. It is well settled by this Court in a catena of judgments including
     Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla
     Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609], Dilawar Balu
     Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of
     Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310], Sajjan Kumar v.
     CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri)
     1371], State v. A. Arun Kumar [State v. A. Arun Kumar, (2015) 2 SCC
     417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505], Sonu Gupta v.
     Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015)
     2 SCC (Cri) 265], State of Orissa v. Debendra Nath Padhi [State of Orissa
     v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC (Cri) 688],
     Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya
     [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990)
                                                         NA528 No. 17695 of 2026
                             11


4 SCC 76 : 1991 SCC (Cri) 47] and Supt. & Remembrancer of Legal
Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs
v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] that the
Judge while considering the question of framing charge under Section
227 of the Code in sessions cases (which is akin to Section 239 CrPC
pertaining to warrant cases) 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; where the material
placed before the court discloses grave suspicion against the accused
which has not been properly explained, the court will be fully justified in
framing the charge; by and large if two views are equally possible and the
Judge is satisfied that the evidence produced before him while giving rise
to some suspicion but not grave suspicion against the accused, he will be
fully within his rights to discharge the accused. The Judge cannot act
merely as a post office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total effect of the
statements and the documents produced before the court, any basic
infirmities appearing in the case and so on. This however does not mean
that the Judge should make a roving enquiry into the pros and cons of the
matter and weigh the materials as if he was conducting a trial.

7. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 :
(2010) 3 SCC (Cri) 1371], this Court on consideration of the various
decisions about the scope of Sections 227 and 228 of the Code, laid down
the following principles:

      "(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.

      (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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                              12


      (iii) The court cannot act merely as a post office or a
      mouthpiece of the prosecution but has to consider the broad
      probabilities of the case, the total effect of the evidence and
      the documents produced before the court, any basic
      infirmities, etc. However, at this stage, there cannot be a
      roving enquiry into the pros and cons of the matter and weigh
      the evidence as if he was conducting a trial.

      (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.

      (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.

      (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 value 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.

      (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."

9. In the matter on hand, the main allegation against the first respondent-
Accused 2 as found in the charge-sheet is that while the complainant
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                                   13


     along with the relevant documents proceeded to the residence of Accused
     1 and 2 at Door No. 28, West Gopalapuram, Chennai-86, to get back his
     money due to him on 20-9-2011, at about 1730 hours, Accused 1 and 2
     threatened the complainant, snatched away the documents from him,
     denied him permission to enter into their house and threatened him with
     dire consequences if he entered into their house. It is relevant to note that
     in the complaint dated 21-9-2011 it is stated that when the complainant
     went to West Gopalapuram and met the accused for an enquiry about
     payment, the accused got furious, beat him and with the help of four
     henchmen pushed him out of their house. On the basis of these
     discrepancies, the contention of the learned counsel for the accused that
     the case as made out by the prosecution cannot be believed inasmuch as
     the material on record is not consistent. It may give rise to some suspicion
     but not grave suspicion, though appears to be attractive, but is not
     acceptable in view of entire material on record. On going through the
     judgment of the High Court, we find that the High Court has virtually
     appreciated the entire material on record as if the High Court is trying a
     criminal case. It would be difficult to lay down the rule of universal
     application as to how the prima facie case should be determined. Though
     the Judge has got power to sift and weigh the evidence, such sifting and
     weighing evidence is for the limited purpose of finding out whether or not
     a prima facie case against the accused has been made out for framing of
     charge. The test to determine a prima facie case would naturally depend
     upon the facts of each case. At this preliminary stage, the High Court was
     not justified in concluding that the accused is entitled for discharge
     merely on the ground of discrepancy in the timings of the incident. The
     question as to whether Respondent 1 was present on the place of incident
     or not during the relevant point of time or she had been in Calcutta as
     sought to be argued before this Court is a matter of proof. Such fact needs
     to be gone into by the trial court after recording the evidence."

20. Furthermore, no finding of 'plea of alibi' can be recorded by this Court
in application under Section 482 Cr.P.C. / 528 B.N.S.S. The burden to
prove the 'plea of alibi' is upon the accused, which he would do by way of
adducing evidence in the trial proceedings and not by filing some
affidavits or statements purported to have been recorded under Section
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                                    14


161 Cr.P.C. The inconsistency or contradictions in the statement of the
witnesses, cannot be examined / appreciated at this stage.

21. The 'plea of alibi' can be proved by leading evidence in the trial court
and not by relying on the material collected by the Investigating Officer
during the course of the investigation. In such a case, the prosecution
would have to be given opportunity to cross-examine the defence witness
to demonstrate that his testimony was not correct. This Court also in
exercise of its inherent powers under Section 482 Cr.P.C. / 528 B.N.S.S.
cannot consider the 'plea of alibi' of an accused at the stage of taking
cognizance or framing of charges or summoning the accused. The
applicant-accused will have ample opportunity to place their evidence
including 'plea of alibi' at the appropriate stage. In this context, the
judgment of the Hon'ble Apex Court rendered in the case of State of
Orissa vs. Debendra Nath Padhi reported in 2004 (8) SCC 568 be
referred to, wherein it was held as under:-

     ".......Further, at the stage of framing of charge roving and fishing inquiry
     is impermissible. If the contention of the accused is accepted, there would
     be a mini trial at the stage of framing of charge. That would defeat the
     object of the Code. It is well-settled that at the stage of framing of charge
     the defence of the accused cannot be put forth. The acceptance of the
     contention of the learned counsel for the accused would mean permitting
     the accused to adduce his defence at the stage of framing of charge and
     for examination thereof at that stage which is against the criminal
     jurisprudence. By way of illustration, it may be noted that the plea of alibi
     taken by the accused may have to be examined at the stage of framing of
     charge if the contention of the accused is accepted despite the well settled
     proposition that it is for the accused to lead evidence at the trial to sustain
     such a plea. The accused would be entitled to produce materials and
     documents in proof of such a plea at the stage of framing of the charge, in
     case we accept the contention put forth on behalf of the accused. That has
     never been the intention of the law well settled for over one hundred years
     now. It is in this light that the provision about hearing the submissions of
     the accused as postulated by Section 227 is to be understood. It only
     means hearing the submissions of the accused on the record of the case as
     filed by the prosecution and documents submitted therewith and nothing
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                                  15


     more. The expression 'hearing the submissions of the accused' cannot
     mean opportunity to file material to be granted to the accused and thereby
     changing the settled law. At the state of framing of charge hearing the
     submissions of the accused has to be confined to the material produced by
     the police."

22. Therefore, the 'plea of alibi' of the applicant cannot be considered at
this stage in view of the settled law. The 'plea of alibi' taken by the
defence is required to be proved only after prosecution has proved its case
against the accused. In the present case, said condition is yet to come. The
defence is at liberty to raise such plea before the trial court at the
appropriate stage.

23. This Court is of the view that the charge can be framed on strong
suspicion against the accused persons. There is no material contradiction
with regard to the prosecution case mentioned in the first information
report as well as in the statements of the witnesses. The statements of
witnesses recorded by the Investigating Officer during course of
investigation cannot be brushed aside at the stage of considering the
discharge application or framing of charge. It is a well settled law that at
the stage of considering the discharge application, the defence of the
accused cannot be taken into consideration. The ground taken by the
applicant in the present application is a disputed question of fact, which
cannot be adjudicated at the time of framing of charge. This Court is of
the view that the appreciation of evidence is a function of the trial court at
the appropriate stage. It is crystallized judicial view that at the stage of
discharge the court is to examine the materials only with a view to be
satisfied that prima facie case of the commission of offence alleged has
been made out against the accused. If there is a ground for presuming that
the accused has committed the offence, the court can justifiably say that
prima facie case exists against the accused. Marshalling and appreciation
of facts is not in the domain of the trial court at the time of considering
discharge application. The broad test to be applied is whether the material
on record, if unrebutted, makes a conviction reasonably possible. The
final test of guilt is not to be applied at that stage.

24. Considering the facts, circumstances and material available on record,
                                                                                         NA528 No. 17695 of 2026
                                                                  16


                                    in view of the law laid down by Hon'ble Apex Court, this court does not
                                    find any illegality, infirmity or perversity in the impugned order
                                    dated 29.1.2026 passed by Additional Session Judge / F.T.C.-Ist,
                                    Kushinagar at Padrauna.

                                    25. The concerned trial court while passing the impugned order dated
                                    29.01.2026 has considered all the relevant materials on record and
                                    decided the discharge application of the applicant in accordance with law
                                    in the light of well settled legal principle laid down by the Hon'ble Apex
                                    Court. The applicant has a remedy under the law to raise all such plea in
                                    his defence before the trial court at the appropriate stage.

                                    26. In view of the above, the present application lacks merit and is,
                                    accordingly, dismissed.

                                    27. No orders as to costs.

                                    28. Registrar (Compliance) is directed to send a copy of this order to the
                                    trial court concerned.



                                                                                     (Vivek Kumar Singh,J.)
                                    May 7, 2026
                                    Lalit Shukla




Digitally signed by :-
LALIT KUMAR SHUKLA
High Court of Judicature at Allahabad