Supreme Court of India

VISHNU KUMAR SHUKLA & ANRversusTHE STATE OF UTTAR PRADESH & ANR

Citation: 2023 INSC 1026
Decided: 28 November 2023
Disposal: Appeal(s) allowed
Bench: VIKRAM NATH

Holding

A criminal case must be discharged when the material on record does not raise strong or grave suspicion of guilt, and the High Court should have intervened to protect the accused from an abuse of process.

Summary

The appellants, Vishnu Kumar Shukla and his wife, were charged under IPC sections 448, 454 and 380 for allegedly breaking into a shop and stealing goods. They contended that the complaint was frivolous, based on a forged tenancy agreement, and that the FIR was an abuse of process. The trial magistrate rejected their discharge application, and the High Court upheld that refusal, prompting this appeal. The Supreme Court examined the scope of discharge applications under CrPC sections 239, 240, 245, 227, 228 and 482, emphasizing that a court must discharge an accused when there is no strong or grave suspicion of guilt. Finding the tenancy document forged and noting the lack of evidence for the alleged offences, the Court held that the proceedings amounted to an abuse of process and that the appellants were entitled to protection from vexatious prosecution. Consequently, the Supreme Court set aside the High Court and trial court orders and discharged the appellants, allowing the appeal.

Issues considered

Whether the High Court erred in refusing to discharge the accused and in upholding the trial court's rejection of the discharge application.
Whether the FIR and subsequent criminal proceedings constitute an abuse of process of the court.
What is the permissible extent of judicial scrutiny when considering an application for discharge under CrPC sections 239, 240, 245, 227 and 228.

Legislation cited

Code of Criminal Procedure, 1973s. 227, s. 228, s. 239, s. 240, s. 245, s. 340, s. 482
Indian Penal Code, 1860s. 380, s. 448, s. 454, s. 463

Subjects

discharge of accusedabuse of processwarrant caseCrPC sections 239-240CrPC section 245CrPC section 227-228CrPC section 482forgeryfalse tenancy agreementvexatious prosecutionhigh court jurisdiction

Judgment

[2023] 13 S.C.R. 1071 : 2023 INSC 1026

CASE DETAILS

VISHNU KUMAR SHUKLA & ANR.
v.
THE STATE OF UTTAR PRADESH & ANR.
NOVEMBER 28, 2023
(Criminal Appeal No. 3618 of 2023)
[VIKRAM NATH AND AHSANUDDIN AMANULLAH, JJ.]

HEADNOTES

Issue for consideration: Whether the order passed by the High Court
refusing to discharge the accused in a criminal case and quashing an FIR
calls for interference.
Code of Criminal Procedure, 1973 – ss. 239-240 – Trial of warrant-
cases by Magistrates – Application for discharge – Permissible extent of
scrutiny – On facts, refusal of the High Court to discharge the accused-
appellant in a criminal case and quash an FIR – Interference with:
Held: Case for interference made out – There is no suspicion, much
less strong or grave suspicion that the appellants are guilty of the oﬀence
alleged, u/ss. 448, 454 and 380 IPC – Criminal case against the appellants
amounts to clear abuse of the process of the Court – It would be unjustiﬁed
to make the appellants face a full-ﬂedged criminal trial – Appellants are
to be protected against vexatious and unwarranted criminal prosecution,
and from unnecessarily being put through the rigours of an eventual trial,
either through quashing a FIR/Complaint or by allowing an appeal against
an order rejecting discharge or by any other legally permissible route, as
the circumstances may be, in the deserving case, is a duty cast on the High
Courts – High Court should have intervened and discharged the appellants
– Thus, there not being suﬃcient material on record to proceed against the
appellants, they are discharged – Impugned judgment of the High Court
as well as the order of the trial court dismissing the prayer for discharge
are are unreasoned and set aside. [Para 14, 23, 24]

1071
1072 SUPREME COURT REPORTS [2023] 13 S.C.R.

Code of Criminal Procedure, 1973 – ss. 239-240 – Trial of warrant-
cases by magistrates – Discharging of accused – Framing of charges
– Reliance on Minakshi Bala’s case which held that at the stage of
framing of charges, the court cannot usurp functions of a trial court to
delve into and decide upon respective merits:
Held: If Minakshi Bala’s case is accepted as it, the necessary
concomitant would be that despite examining the matter in detail, a
court would ﬁnd its freedom restricted while considering the discharge
application – This would amount to forcing a person to stand trial, even when
‘overwhelming’ material points to his/her innocence – Obviously, hands of
a Court ought not to be tied down, and not against liberty – Thus, Minakshi
Bala’s case is doubted on the limited aspect, however, not referred to the
larger bench for reconsideration observing that the same would be done in
a more appropriate case – Precedent. [Para 18, 25]

LISTS OF CITATIONS AND OTHER REFERENCES

Minakshi Bala v Sudhir Kumar, (1994) 4 SCC 142: [1994] 3 SCR
1008 – Doubted on limited aspect.
Ajoy Kumar Ghose v State of Jharkhand, (2009) 14 SCC 115: [2009]
4 SCR 515; Rumi Dhar v State of West Bengal, (2009) 6 SCC 364: [2009]
5 SCR 553; State of Tamil Nadu v N Suresh Rajan, (2014) 11 SCC 709:
[2014] 1 SCR 135; State of Bihar v Ramesh Singh, (1977) 4 SCC 39: [1978]
1 SCR 257; Union of India v Prafulla K Samal, (1979) 3 SCC 4: [1979] 2
SCR 229; Stree Atyachar Virodhi Parishad v Dilip N Chordia, (1989) 1 SCC
715: [1989] 1 SCR 560; Niranjan Singh Karam Singh Punjabi v Jitendra B
Bijjaya, (1990) 4 SCC 76: [1990] 3 SCR 633; Dilawar B Kurane v State of
Maharashtra, (2002) 2 SCC 135: [2002] 1 SCR 75; Chitresh K Chopra v
State (Government of NCT of Delhi), (2009) 16 SCC 605: [2009] 13 SCR
230; Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460: [2012] 7 SCR
988; Dinesh Tiwari v State of Uttar Pradesh, (2014) 13 SCC 137: [2014] 8
SCR 207; Dipakbhai Jagdishchandra Patel v State of Gujarat, (2019) 16
SCC 547: [2019] 6 SCR 701; State (NCT of Delhi) v Shiv Charan Bansal,
(2020) 2 SCC 290: [2019] 17 SCR 1155; K P Raghavan v M H Abbas,
AIR 1967 SC 740: 1967 AIR 740; Almohan Das v State of West Bengal,
(1969) 2 SCR 520: [1969] 2 SCR 520; Sajjan Kumar v Central Bureau of
VISHNU KUMAR SHUKLA & ANR. v. 1073
THE STATE OF UTTAR PRADESH & ANR.

Investigation, (2010) 9 SCC 368: [2010] 9 SCC 368; State of Gujarat v
Dilipsinh Kishorsinh Rao, 2023 INSC 894 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.3618 of 2023.
From the Judgment and Order dated 02.08.2017 of the High Court of
Judicature at Allahabad, Lucknow Bench in CN No.4929 of 2017.
Appearances:
Alok Kumar Mishra, Ashutosh Lal, Pramod Tiwari, Vivek Tiwari,
Ms. Priyanka Dubey, Dr. Vinod Kumar Tewari, Advs. for the Appellants.
Adarsh Upadhyay, Ms. Pallavi Kumari, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT

AHSANUDDIN AMANULLAH, J.
Leave granted.
2. This appeal is directed against the Final Judgment and Order dated
02.08.2017 (hereinafter referred to as the “Impugned Judgment”) passed by
the Lucknow Bench of the High Court of Judicature at Allahabad (hereinafter
referred to as the “High Court”) in Case U/S 482/378/407 Cr.P.C. No.4929
of 2017, by which the Order dated 02.06.2017 passed by the Chief Judicial
Magistrate, Lucknow rejecting the prayer for discharge of the appellants,
who are husband and wife, respectively, has been upheld.
THE FACTUAL PRISM:
3. In brief, the allegations are that the Complainant/Respondent No.2
(hereinafter referred to as “R2”) was a tenant of a shop situated in the house
of one Hari Narayan Shukla. On 29.06.2011, the appellants, along with
others, locked the door of R2’s shop from inside, broke the wall and looted
wheat (APL), sale money, about INR 21,000 worth of kerosene oil, goods
in stock, all the registers of the shop, documents and a two-wheeler bearing
1074 SUPREME COURT REPORTS [2023] 13 S.C.R.

Registration Number UP32BX2356 which led to R2 ﬁling of the Hazratganj
P.S. Case No.341 of 2011 dated 01.07.2011 (hereinafter referred to as the
“FIR”) under Sections 448, 454 and 380 of the Indian Penal Code, 1860
(hereinafter referred to as the “IPC”).
SUBMISSIONS BY THE APPELLANTS:
4. The learned counsel for the appellants submitted that FIR itself
would show that the allegation(s) is/are frivolous in nature and levelled
with a view only to frustrate the appellants from enjoying their property, as
admittedly, Appellant No.2 (hereinafter referred to as “A2”) is the owner of
the shop referred to supra, being the bona ﬁde purchaser through a registered
Sale Deed.
5. Learned counsel for the appellants submitted that R2, who claimed
to be the tenant of the property in question, had on 31.05.2011 ﬁled Regular
Suit No.104/2011 for permanent injunction before the Civil Judge (Senior
Division) South, Lucknow which was based on a so-called ‘Memorandum
of Agreement of Tenancy’ dated 24.11.2005, in which the present symbol of
the Indian National Rupee i.e., ₹, has been shown but the said symbol came
into being only in the year 20101 and thus, could not have been reﬂected
in a ‘Memorandum’ of the year 2005, which clearly exposes the falsity
of the claim. Moreover, it was submitted that this would also amount to
perjury by ﬁling of a forged document before a Court of Law, for which
the appellant(s) had ﬁled an application under Section 3402 of the Code of

1 To be precise, the symbol was oﬃcially approved on 26.08.2010 vide F.No.03/17/10-
Cy., Government of India, Ministry of Finance, Department of Economic Aﬀairs (Cy.
Section).
2 340. Procedure in cases mentioned in Section 195.—(1) When, upon an application
made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the
interests of justice that an inquiry should be made into any oﬀence referred to in clause
(b) of sub-section (1) of Section 195, which appears to have been committed in or in
relation to a proceeding in that Court or, as the case may be, in respect of a document
produced or given in evidence in a proceeding in that Court, such Court may, after
such preliminary inquiry, if any, as it thinks necessary,—
(a) record a ﬁnding to that eﬀect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the ﬁrst class having jurisdiction;
(d) take suﬃcient security for the appearance of the accused before such Magistrate,
or if the alleged oﬀence is non-bailable and the Court thinks it necessary so to do,
send the accused in custody to such Magistrate; and
VISHNU KUMAR SHUKLA & ANR. v. THE STATE OF UTTAR 1075
PRADESH & ANR. [AHSANUDDIN AMANULLAH, J.]

Criminal Procedure, 1973 (hereinafter referred to as the “CrPC”) before the
concerned Court.
6. It was further submitted that the FIR lodged by R2 on 01.07.2011
was for alleged oﬀences under Sections 4483, 4544 and 3805 of the IPC.
However, it was contended that though no case was made out, still the
police in collusion with R2 submitted Charge Sheet No.189 of 2011 dated
07.08.2011 under Section 448, IPC against the appellants upon which the
appellants were summoned and were put on trial. It was submitted that R2
also ﬁled an application under Section 1446, CrPC before the Additional

(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an oﬀence may,
in any case where that Court has neither made a complaint under sub-section (1) in
respect of that oﬀence nor rejected an application for the making of such complaint, be
exercised by the Court to which such former Court is subordinate within the meaning
of sub-section (4) of Section 195.
(3) A complaint made under this section shall be signed,—
(a) where the Court making the complaint is a High Court, by such oﬃcer of the
Court as the Court may appoint;
(b) in any other case, by the presiding oﬃcer of the Court or by such oﬃcer of the
Court as the Court may authorise in writing in this behalf.
(4) In this section, “Court” has the same meaning as in Section 195.
3 448. Punishment for house-trespass.—Whoever commits house-trespass shall be
punished with imprisonment of either description for a term which may extend to one
year, or with ﬁne which may extend to one thousand rupees, or with both.
4 454. Lurking house-trespass or house-breaking in order to commit oﬀence
punishable with imprisonment.—Whoever commits lurking house-trespass or house-
breaking, in order to the committing of any oﬀence punishable with imprisonment,
shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to ﬁne; and if the oﬀence intended to be
committed is theft, the term of the imprisonment may be extended to ten years.
5 380. Theft in dwelling house, etc.—Whoever commits theft in any building, tent or
vessel, which building, tent or vessel is used as a human dwelling, or used for the
custody of property, shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to ﬁne.
6 144. Power to issue order in urgent cases of nuisance or apprehended danger.—(1)
In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate
or any other Executive Magistrate specially empowered by the State Government in
this behalf, there is suﬃcient ground for proceeding under this section and immediate
prevention or speedy remedy is desirable, such Magistrate may, by a written order
stating the material facts of the case and served in the manner provided by Section 134,
direct any person to abstain from a certain act or to take certain order with respect
to certain property in his possession or under his management, if such Magistrate
1076 SUPREME COURT REPORTS [2023] 13 S.C.R.

City Magistrate (First), Lucknow, registered as Suit No.01 of 2012 against
the appellants which, by Order dated 09.08.2012, was rejected as not
maintainable. It was further submitted that A2 moved the High Court in
Rent Control Case No.125 of 2012 and vide order dated 14.12.2012, the
High Court directed the said Rent Control Case proceeding to remain in
abeyance.
7. Learned counsel submitted that the Trial Court, upon the Charge
Sheet submitted by the police in the FIR, took cognizance on 07.08.2011,
against which the appellants moved the High Court under Section 482 7,

considers that such direction is likely to prevent, or tends to prevent, obstruction,
annoyance or injury to any person lawfully employed, or danger to human life, health
or safety, or a disturbance of the public tranquillity, or a riot, or an aﬀray.
(2) An order under this section may, in cases of emergency or in cases where the
circumstances do not admit of the serving in due time of a notice upon the person against
whom the order is directed, be passed ex parte.
(3) An order under this section may be directed to a particular individual, or to per-
sons residing in a particular place or area, or to the public generally when frequenting or
visiting a particular place or area.
(4) No order under this section shall remain in force for more than two months from
the making thereof:
Provided that, if the State Government considers it necessary so to do for preventing
danger to human life, health or safety or for preventing a riot or any aﬀray, it may, by
notiﬁcation, direct that an order made by a Magistrate under this section shall remain in
force for such further period not exceeding six months from the date on which the order
made by the Magistrate would have, but for such order, expired, as it may specify in the
said notiﬁcation.
(5) Any Magistrate may, either on his own motion or on the application of any person
aggrieved, rescind or alter any order made under this section, by himself or any Magistrate
subordinate to him or by his predecessor-in-oﬃce.
(6) The State Government may, either on its own motion or on the application of any
person aggrieved, rescind or alter any order made by it under the proviso to sub-section
(4).
(7) Where an application under sub-section (5) or sub-section (6) is received, the
Magistrate, or the State Government, as the case may be, shall aﬀord to the applicant an
early opportunity of appearing before him or it, either in person or by pleader and showing
cause against the order; and if the Magistrate or the State Government, as the case may
be, rejects the application wholly or in part, he or it shall record in writing the reasons for
so doing.
7 482. Saving of inherent powers of High Court.—Nothing in this Code shall be
deemed to limit or aﬀect the inherent powers of the High Court to make such orders
as may be necessary to give eﬀect to any order under this Code, or to prevent abuse of
the process of any Court or otherwise to secure the ends of justice.
VISHNU KUMAR SHUKLA & ANR. v. THE STATE OF UTTAR 1077
PRADESH & ANR. [AHSANUDDIN AMANULLAH, J.]

CrPC, in Case No. U/S 482/378/407 No. - 2413 of 2012 which was disposed
of vide order dated 10.04.2014 with the direction that the appellants may
ﬁle application for discharge before the Court concerned.
8. It was submitted that on 18.12.2014, the Civil Judge (Junior
Division), South, Lucknow in Miscellaneous Suit No.540031 C/2012, which
was instituted on the application ﬁled by the appellants under Section 340,
CrPC, prima facie found that oﬀence under Section 4638, IPC had been
committed by R2 and directed initiation of proceedings against him.
9. Furthermore, it was pointed out that in terms of the High Court’s
Order dated 10.04.2014, the appellants on 16.01.2016 ﬁled application
for discharge before the Chief Judicial Magistrate, Lucknow, in Case
Crime No.368 of 2011, wherein one of the grounds taken was the order
dated 18.12.2014 passed by the Civil Judge (Junior Division), South,
Lucknow.
10. Learned counsel submitted that Order dated 18.12.2014 was
a clear-cut ﬁnding by a Court of Law that the entire suit was premised
on forged and fabricated document(s). He submitted that once the same
has been established, the contention of R2 to be in possession of the
property in question does not arise and clearly the FIR itself was a misuse
and abuse of the process of law. Learned counsel submitted that despite
there being suﬃcient material for discharge, the Trial Court by order
dated 02.06.2017 rejected the application on vague grounds and thus,
the appellants had to move the High Court under Section 482, CrPC in
Case U/S 482/378/407 Cr.P.C. No.4929 of 2017, which was dismissed
by the Impugned Judgment.
11. Learned counsel pointed out that innocence of the appellants would
be further established by the fact that despite the initial FIR having been
registered under Sections 448, 454 and 380, IPC, the police did not ﬁnd any
case under Sections 454 and 380, IPC, to which R2 neither objected nor

8 463. Forgery.—Whoever makes any false documents or false electronic record or part
of a document or electronic record, with intent to cause damage or injury, to the public
or to any person, or to support any claim or title, or to cause any person to part with
property, or to enter into any express or implied contract, or with intent to commit
fraud or that fraud may be committed, commits forgery.
1078 SUPREME COURT REPORTS [2023] 13 S.C.R.

ﬁled any protest. Thus, it was contended that the acceptance of the fact that
there was no lurking house-trespass or housebreaking in order to commit
oﬀence punishable with imprisonment (Section 454, IPC) and no theft in
dwelling house, etc. (Section 380, IPC) also make it amply clear that R2 was
never in possession of the property in question and his entire case falls ﬂat.
SUBMISSIONS OF THE RESPONDENT-STATE:
12. Per contra, learned counsel for the State opposed the prayer by
the appellants seeking discharge, and supported the Impugned Judgment.
Learned counsel sought dismissal of the appeal.
NON-APPEARANCE OF THE RESPONDENT NO.2:
13. Despite service, nobody appeared on behalf of R2.
ANALYSIS, REASONING AND CONCLUSION:
14. Having examined the matter in detail, a case for interference has
been made out. The fact is that the Indian National Rupee symbol i.e., ₹ was
not in existence during the time the purported ‘Memorandum’ was signed.
Furthermore, R2 has based his entire claim of tenancy on a document which
has been, prima facie, found to be forged and fabricated, for which the
Court concerned has directed lodging of a criminal case. There is no other
claim by R2 to show that he was in possession. When coupled with the fact
that the police did not ﬁnd any oﬀences having been made out against the
appellants under Sections 454 and 380, IPC, the case against the appellants
under Section 448, IPC ﬁnds itself on shaky ground. R2 never objected to
the above nor took any further steps. R2, as noted above, has not entered
appearance before this Court. Thus, the case against the appellants ﬁnds itself
on shakier ground. We are of the ﬁrm view that A2 being the undisputed
landlord, the criminal case ﬁled by R2, in the facts and circumstances supra,
amounts to clear abuse of the process of the Court. Moreover, we ﬁnd that
the Impugned Judgment and the judgment dated 02.06.2017 of the Chief
Judicial Magistrate, Lucknow are unreasoned as to why discharge is to be
denied. Thus far on facts and merits. Now, on the law.
15. Although the instant case pertains to Trial of Warrant-Cases by
Magistrates and is a case instituted on a police report, meaning Sections 239-
VISHNU KUMAR SHUKLA & ANR. v. THE STATE OF UTTAR 1079
PRADESH & ANR. [AHSANUDDIN AMANULLAH, J.]

2409, CrPC are relevant, we also propose to glance at Section 24510, CrPC
(concerning trial of warrant-cases by Magistrates apropos cases instituted
otherwise than on police report), as also Sections 227-22811, CrPC, which
pertain to Trial before a Court of Session.

9 239. 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.
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.
(2) The charge shall then be read and explained to the accused, and he shall be
asked whether he pleads guilty of the oﬀence charged or claims to be tried.
10 245. When accused shall be discharged.—(1) If, upon taking all the evidence
referred to in Section 244, the Magistrate considers, for reasons to be recorded,
that no case against the accused has been made out which, if unrebutted,
would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging
the accused at any previous stage of the case if, for reasons to be recorded by such
Magistrate, he considers the charge to be groundless.
11 227. 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 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.
1080 SUPREME COURT REPORTS [2023] 13 S.C.R.

16. The extent of scrutiny permissible when an application for
discharge is being considered has attracted this Court’s attention on a
number of occasions. It is appropriate to take note of the leading precedents
on the subject. Insofar as Section 245, CrPC is concerned, the decision of
this Court in Ajoy Kumar Ghose v State of Jharkhand, (2009) 14 SCC
115 is instructive:
‘19. The essential diﬀerence of procedure in the trial of warrant case
on the basis of a police report and that instituted otherwise than on the
police report is particularly marked in Sections 238 and 239 CrPC on
one side and Sections 244 and 245 CrPC on the other. Under Section
238, when in a warrant case, instituted on a police report, the accused
appears or is brought before the Magistrate, the Magistrate has to
satisfy himself that he has been supplied the necessary documents like
the police report, FIR, statements recorded under sub-section (3) of
Section 161 CrPC of all the witnesses proposed to be examined by the
prosecution, as also the confessions and statements recorded under
Section 164 and any other documents which have been forwarded by
the prosecuting agency to the court.
20.After that, comes the stage of discharge, for which it is provided
in Section 239 CrPC that the Magistrate has to consider the police
report and the documents sent with it under Section 173 CrPC and if
necessary, has to examine the accused and has to hear the prosecution
of the accused, and if on such examination and hearing, the Magistrate
considers the charge to be groundless, he would discharge the accused
and record his reasons for so doing. The prosecution at that stage is
not required to lead evidence. If, on examination of the aforementioned
documents, he comes to the prima facie conclusion that there is a
ground for proceeding with the trial, he proceeds to frame the charge.
For framing the charge, he does not have to pass a separate order. It
is then that the charge is framed under Section 240 CrPC and the trial
proceeds for recording the evidence. Thus, in such trial prosecution
has only one opportunity to lead evidence and that too comes only
after the charge is framed.
Xxx
VISHNU KUMAR SHUKLA & ANR. v. THE STATE OF UTTAR 1081
PRADESH & ANR. [AHSANUDDIN AMANULLAH, J.]

2212. In the warrant trial instituted otherwise than the police report, the
complainant gets two opportunities to lead evidence, ﬁrstly, before the
charge is framed and secondly, after the framing of the charge. Of course,
under Section 245(2) CrPC, a Magistrate can discharge the accused at
any previous stage of the case, if he ﬁnds the charge to be groundless.
23. Essentially, the applicable sections are Sections 244 and 245 CrPC
since this is a warrant trial instituted otherwise than on police report.
There had to be an opportunity for the prosecution to lead evidence
under Section 244(1) CrPC or to summon its witnesses under Section
244(2) CrPC.This did not happen and instead, the accused proceeded
to ﬁle an application under Section 245(2) CrPC on the ground that the
charge was groundless.
24.Now, there is a clear diﬀerence in Sections 245(1) and 245(2) of
CrPC. Under Section 245(1), the Magistrate has the advantage of the
evidence led by the prosecution before him under Section 244 and he has
to consider whether if the evidence remains unrebutted, the conviction of
the accused would be warranted. If there is no discernible incriminating
material in the evidence, then the Magistrate proceeds to discharge the
accused under Section 245(1) CrPC.
25.The situation under Section 245(2) CrPC is, however, diﬀerent. There,
under sub-section (2), the Magistrate has the power of discharging the
accused at any previous stage of the case i.e. even before such evidence
is led. However, for discharging an accused under Section 245(2) CrPC,
the Magistrate has to come to a ﬁnding that the charge is groundless.
There is no question of any consideration of evidence at that stage,
because there is none. The Magistrate can take this decision before the
accused appears or is brought before the court or the evidence is led
under Section 244 CrPC. The words appearing in Section 245(2) CrPC
“at any previous stage of the case”, clearly bring out this position.

Xxx

12 Paragraph 22 was corrected vide Oﬃcial Corrigendum F.3/Ed.B.J./124/2009 issued on
22.08.2009 by the Court.
1082 SUPREME COURT REPORTS [2023] 13 S.C.R.

36. The Magistrate has the power to discharge the accused under
Section 245(2) CrPC at any previous stage i.e. before the evidence is
recorded under Section 244(1) CrPC, which seems to be the established
law, particularly in view of the decision in Cricket Assn. of Bengal v.
State of W.B. [(1971) 3 SCC 239 : 1971 SCC (Cri) 446], as also the
subsequent decision of the Bombay High Court in Luis de Piedade
Lobo v. Mahadev Vishwanath Parulekar [1984 Cri LJ 513 (Bom)].
The same decision was followed by Kerala High Court in Manmohan
Malhotra v. P.M. Abdul Salam [1994 Cri LJ 1555 (Ker)] and Hon’ble
Justice K.T. Thomas, as the learned Judge then was, accepted the
proposition that the Magistrate has the power under Section 245(2)
CrPC to discharge the accused at any previous stage. The Hon’ble
Judge relied on a decision of the Madras High Court in Mohd. Sheriﬀ
Sahib v. Abdul Karim Sahib [AIR 1928 Mad 129 (1)], as also the
judgment of the Himachal Pradesh High Court in Gopal Chauhan v.
Satya [1979 Cri LJ 446 (HP)].
37. We are convinced that under Section 245(2) CrPC the Magistrate
can discharge the accused at any previous stage i.e. even before
any evidence is recorded under Section 244(1) CrPC. In that view,
the accused could have made the application. It is obvious that the
application has been rejected by the Magistrate. So far, there is no
diﬃculty.’
(emphasis supplied)
17. Turning to Sections 239-240, CrPC, this Court held as under in
Minakshi Bala v Sudhir Kumar, (1994) 4 SCC 142:
‘6. Having regard to the fact that the oﬀences, for which charge-sheet
was submitted in the instant case and cognizance taken, were triable
as a warrant case the Magistrate was to proceed in accordance with
Sections 239 and 240 of the Code at the time of framing of the charges.
Under the above sections, the Magistrate is ﬁrst required to consider
the police report and the documents sent with it under Section 173
CrPC and examine the accused, if he thinks necessary, and give an
opportunity to the prosecution and the accused of being heard. If on
such consideration, examination and hearing the Magistrate ﬁnds the
charge groundless he has to discharge the accused in terms of Section
VISHNU KUMAR SHUKLA & ANR. v. THE STATE OF UTTAR 1083
PRADESH & ANR. [AHSANUDDIN AMANULLAH, J.]

239 CrPC; conversely, if he ﬁnds that there is ground for presuming
that the accused has committed an oﬀence triable by him he has to
frame a charge in terms of Section 240 CrPC.
7. If charges are framed in accordance with Section 240 CrPC on a
ﬁnding that a prima facie case has been made out — as has been done
in the instant case — the person arraigned may, if he feels aggrieved,
invoke the revisional jurisdiction of the High Court or the Sessions
Judge to contend that the charge-sheet submitted under Section 173
CrPC and documents sent with it did not disclose any ground to
presume that he had committed any oﬀence for which he is charged
and the revisional court if so satisﬁed can quash the charges framed
against him. To put it diﬀerently, once charges are framed under
Section 240 CrPC the High Court in its revisional jurisdiction would
not be justiﬁed in relying upon documents other than those referred
to in Sections 239 and 240 CrPC; nor would it be justiﬁed in invoking
its inherent jurisdiction under Section 482 CrPC to quash the same
except in those rare cases where forensic exigencies and formidable
compulsions justify such a course. We hasten to add even in such
exceptional cases the High Court can look into only those documents
which are unimpeachable and can be legally translated into relevant
evidence.
8. Apart from the inﬁrmity in the approach of the High Court in dealing
with the matter which we have already noticed, we further ﬁnd that
instead of adverting to and conﬁning its attention to the documents
referred to in Sections 239 and 240 CrPC the High Court has dealt
with the rival contentions of the parties raised through their respective
aﬃdavits at length and on a threadbare discussion thereof passed the
impugned order. The course so adopted cannot be supported; ﬁrstly,
because ﬁnding regarding commission of an oﬀence cannot be recorded
on the basis of aﬃdavit evidence and secondly, because at the stage
of framing of charge the Court cannot usurp the functions of a trial
court to delve into and decide upon the respective merits of the case.’
(emphasis supplied)
18. With great respect, we express our reservations in fully acceding
to what has been stated above. If Paragraph 8 of Minakshi Bala (supra)
1084 SUPREME COURT REPORTS [2023] 13 S.C.R.

is accepted as it is, the necessary concomitant would be that despite
examining the matter in detail, a Court would find its wings clipped to
intercede. This would amount to forcing a person to stand trial, even
when the overwhelming material points to his/her innocence. Obviously,
the hands of a Court ought not to be tied down, and especially not by a
higher Court, and moreso not against liberty. Paragraph 7 of Minakshi
Bala (supra) does enable examining unimpeachable documents.
We are conscious that Minakshi Bala (supra) has been followed in
later decisions by the Court. However, we have chosen to survey the
precedents further, and then decide on the road we wish to take 13.
19. In Rumi Dhar v State of West Bengal, (2009) 6 SCC 364, this
Court held that the Judge concerned with an application under Section
239, CrPC has to ‘… go into the details of the allegations made against
each of the accused persons so as to form an opinion as to whether any
case at all has been made out or not as a strong suspicion in regard
thereto shall subserve the requirements of law.’
20. In State of Tamil Nadu v N Suresh Rajan, (2014) 11 SCC
709, it was observed notwithstanding the difference in language of
Sections 227 and 239, CrPC, the approach of the Court concerned is
to be common under both provisions. The principles holding the field
under Sections 227 and 228, CrPC are well-settled, courtesy, inter alia,
State of Bihar v Ramesh Singh, (1977) 4 SCC 39; Union of India v
Prafulla K Samal, (1979) 3 SCC 4; Stree Atyachar Virodhi Parishad
v Dilip N Chordia, (1989) 1 SCC 715; Niranjan Singh Karam Singh
Punjabi v Jitendra B Bijjaya, (1990) 4 SCC 76; Dilawar B Kurane v
State of Maharashtra, (2002) 2 SCC 135; Chitresh K Chopra v State
(Government of NCT of Delhi), (2009) 16 SCC 605; Amit Kapoor v
Ramesh Chander, (2012) 9 SCC 460; Dinesh Tiwari v State of Uttar
Pradesh, (2014) 13 SCC 137; Dipakbhai Jagdishchandra Patel v
State of Gujarat, (2019) 16 SCC 547; and State (NCT of Delhi) v
Shiv Charan Bansal, (2020) 2 SCC 290. We need only refer to some,
starting with Prafulla K Samal (supra), where, after considering
Ramesh Singh (supra), K P Raghavan v M H Abbas, AIR 1967 SC

13 Yes, the allusion is to Robert Frost’s celebrated poem – The Road Not Taken.
VISHNU KUMAR SHUKLA & ANR. v. THE STATE OF UTTAR 1085
PRADESH & ANR. [AHSANUDDIN AMANULLAH, J.]

740 and Almohan Das v State of West Bengal, (1969) 2 SCR 520, it
was laid down as under:
‘10. Thus, on a consideration of the authorities mentioned above, the
following principles emerge:
(1) That the Judge while considering the question of framing the
charges under Section 227 of the Code 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.
(2) 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.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is diﬃcult to lay down
a rule of universal application. By and large however 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
right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of
the Code the Judge which under the present Code is a senior
and experienced 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
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 evidence as if he was conducting a trial.’
(emphasis supplied)
21. In Niranjan Singh Karam Singh Punjabi (supra), this Court
was alive to reality, stating that ‘… it cannot be expected even at the initial
stage to accept all that the prosecution states as gospel truth even if it is
1086 SUPREME COURT REPORTS [2023] 13 S.C.R.

opposed to common sense or the broad probabilities of the case.’ If a view
gives rise to suspicion, as opposed to grave suspicion, the Court concerned
is empowered to discharge the accused, as pointed out in Sajjan Kumar v
Central Bureau of Investigation, (2010) 9 SCC 368. The Court, in Dinesh
Tiwari (supra) had reasoned that if the Court concerned opines that there is
ground to presume the accused has committed an oﬀence, it is competent to
frame a charge even if such oﬀence is not mentioned in the Charge Sheet.
As to what is ‘strong suspicion’, reference to Dipakbhai Jagdishchandra
Patel (supra) is warranted, where it was explained that it is ‘… the suspicion
which is premised on some material which commends itself to the court as
suﬃcient to entertain the prima facie view that the accused has committed
the oﬀence.’
22. In a recent judgement viz. State of Gujarat v Dilipsinh Kishorsinh
Rao, 2023 INSC 89414, this Court held:
‘7. It is trite law that application of judicial mind being necessary to
determine whether a case has been made out by the prosecution for
proceeding with trial and it would not be necessary to dwell into the
pros and cons of the matter by examining the defence of the accused
when an application for discharge is ﬁled. At that stage, the trial judge
has to merely examine the evidence placed by the prosecution in order
to determine whether or not the grounds are suﬃcient to proceed
against the accused on basis of charge sheet material. The nature
of the evidence recorded or collected by the investigating agency or
the documents produced in which prima facie it reveals that there
are suspicious circumstances against the accused, so as to frame a
charge would suﬃce and such material would be taken into account
for the purposes of framing the charge. If there is no suﬃcient ground
for proceeding against the accused necessarily, the accused would be
discharged, but if the court is of the opinion, after such consideration
of the material there are grounds for presuming that accused has
committed the oﬀence which is triable, then necessarily charge has
to be framed.

14 2023 SCC OnLine SC 1294.
VISHNU KUMAR SHUKLA & ANR. v. THE STATE OF UTTAR 1087
PRADESH & ANR. [AHSANUDDIN AMANULLAH, J.]

8. At the time of framing of the charge and taking cognizance the
accused has no right to produce any material and call upon the court
to examine the same. No provision in the Code grants any right to the
accused to ﬁle any material or document at the stage of framing of
charge. The trial court has to apply its judicial mind to the facts of
the case as may be necessary to determine whether a case has been
made out by the prosecution for trial on the basis of charge-sheet
material only.
9. If the accused is able to demonstrate from the charge-sheet material
at the stage of framing the charge which might drastically aﬀect the
very sustainability of the case, it is unfair to suggest that such material
should not be considered or ignored by the court at that stage. The main
intention of granting a chance to the accused of making submissions
as envisaged under Section 227 of the Cr. P.C. is to assist the court
to determine whether it is required to proceed to conduct the trial.
Nothing in the Code limits the ambit of such hearing, to oral hearing
and oral arguments only and therefore, the trial court can consider
the material produced by the accused before the I.O.
10. It is settled principle of law that at the stage of considering an
application for discharge the court must proceed on an assumption
that the material which has been brought on record by the prosecution
is true and evaluate said material in order to determine whether the
facts emerging from the material taken on its face value, disclose the
existence of the ingredients necessary of the oﬀence alleged. …
xxx
11. 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 Cr. P.C. 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.
12. The primary consideration at the stage of framing of charge is the
test of existence of a prima-facie case, and at this stage, the probative
1088 SUPREME COURT REPORTS [2023] 13 S.C.R.

value of materials on record need not be gone into. This Court by
referring to its earlier decisions in the State of Maharashtra v. Som
Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni,
(2000) 6 SCC 338 has held the nature of evaluation to be made by the
court at the stage of framing of the charge is to test the existence of
prima-facie case. It is also held at the stage of framing of charge, the
court has to form a presumptive opinion to the existence of factual
ingredients constituting the oﬀence alleged and it is not expected to
go deep into probative value of the material on record and to check
whether the material on record would certainly lead to conviction at
the conclusion of trial.’
(emphasis supplied)
23. On a careful conspectus of the legal spectrum, juxtaposed with
our view on the facts and merits expressed hereinbefore, we are satisﬁed
that there is no suspicion, much less strong or grave suspicion that the
appellants are guilty of the oﬀence alleged. It would be unjustiﬁed to make
the appellants face a full-ﬂedged criminal trial in this backdrop. In an appeal
dealing with the refusal of the High Court to quash an FIR under Section
482, CrPC albeit, this Court, while setting aside the judgment impugned
therein and quashing that FIR, took the view that ‘…the Appellants are to
be protected against vexatious and unwarranted criminal prosecution, and
from unnecessarily being put through the rigours of an eventual trial.’ 15
The protection against vexatious and unwanted prosecution and from being
unnecessarily dragged through a trial by melting a criminal proceeding into
oblivion, either through quashing a FIR/Complaint or by allowing an appeal
against an order rejecting discharge or by any other legally permissible
route, as the circumstances may be, in the deserving case, is a duty cast on
the High Courts. The High Court should have intervened and discharged the
appellants. But this Court will intervene, being the sentinel on the qui vive.
24. Accordingly, this appeal is allowed. The appellants, on bail, stand
discharged of the liabilities of their bail bonds. The Impugned Judgment of
the High Court as well as the order of the Trial Court dismissing the prayer

15 Priyanka Mishra v State of Uttar Pradesh, 2023 INSC 729 | 2023 SCC OnLine SC
978.
VISHNU KUMAR SHUKLA & ANR. v. THE STATE OF UTTAR 1089
PRADESH & ANR. [AHSANUDDIN AMANULLAH, J.]

for discharge are set aside. Consequently, there not being suﬃcient material
on record to proceed against them, the appellants stand discharged in the
criminal case. Our judgment shall not inﬂuence pending civil proceeding(s),
if any, between the private parties.
25. Insofar as Minakshi Bala (supra) is concerned, having taken the
view that we have and expressed our doubt on the limited aspect, yet we do
not ﬁnd any need to burden a larger Bench to reconsider the said judgment,
at this juncture. ‘In a more appropriate case…’, perhaps, as the saying goes.

Headnotes prepared by: Appeal allowed.
Nidhi Jain

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