Baburam And 8 Others vs State Of U.P. Thru. Prin. Secy. Home Lko And Another

HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
MATTERS UNDER ARTICLE 227 No. - 2542 of 2026
Baburam And 8 Others
.....Petitioner(s)
Versus
State Of U.P. Thru. Prin. Secy. Home Lko And
Another
.....Respondent(s)
Counsel for Petitioner(s) : Shikhar Anand
Counsel for Respondent(s) : G.A., Dhirendra Kumar Mishra
[A.F.R.]

Court No. - 14
HON'BLE SUBHASH VIDYARTHI, J.
1. Heard Shri Shikhar Anand, the learned counsel for the petitioners, Shri Jai
Prakash, the learned A.G.A. and Sri. Dhirendra Kumar Mishra, the learned
counsel for the opposite party No.2.
2. By means of the instant petition filed under Article 227 of the Constitution
of India, the petitioners have challenged the validity of an order dated
16.01.2024 passed by the learned Additional Chief Judicial Magistrate,
Court No. 20, Sultanpur in Criminal Case No.7039 of 2023 arising out of
Case Crime No.81 of 2019 under Section 457, 380 IPC, Police Station-
Baldirai, District- Sultanpur whereby an application filed by the petitioners
under Section 227 Cr.P.C. seeking their discharge, has been rejected. The
petitioners challenged the aforesaid order by filing Criminal Revision No. 43
of 2024, which too has been dismissed by means of a judgment and order
dated 17.08.2024 passed by the learned Session Judge, Sultanpur and
validity of the revisional order has also been assailed through the present
petition.
3. The aforesaid case was instituted on the basis of an application under
Section 156(3) Cr.P.C. filed by the opposite party No.2- Tejbahadur against
(i) Baburam, aged about 58 years, (ii) Sant Ram, aged about 65 years, (both
(i) and (ii) sons of Hublal), (iii) Rinku @ Ashwani, aged about 20 years son
of Baburam and (iv) Devendra @ Moti, aged about 25 years, son of
Santram, the petitioner nos.1, 2, 3 and 4 respectively in the present petition.

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4. It was stated in the application that the complainant is a permanent
resident of House No. 162, Village- Lakehatamafi, Police Station and Tehsil
-Baldirai, District- Sultanpur. The opposite party nos. 1 to 4 forcibly
attempted to take possession of the house and they instituted Regular Suit
No. 76 of 2006, wherein the trial Court passed an order directing the parties
to maintain status-quo. On 26.12.2018 at about 7:00 p.m., when the
complainant had gone out in connection of his treatment, the opposite party
nos.1 to 4 broke open the lock of the house, entered into it and took away a
generator along with its parts worth Rs. 80,000/-, three takhats, 50 sacks full
of paddy, 40 sacks full of wheat, two benches, one table, a gas stove, a gas
cylinder and some other household articles. Upon receiving information
from some unnamed persons, the complainant dialed 100 and informed the
police. By the time the police arrived, the accused persons had already taken
away the articles.
5. The complainant reported the incident to the police but the police did not
lodge a First Information Report. Thereafter, on 29.12.2018, he sent
information of the incident to the Superintendent of Police, Sultanpur
through registered post and when no action was taken on that application, he
filed an application under Section 156(3) Cr.P.C. against the petitioner nos.
1 to 4. On the said application, the learned Additional Chief Judicial
Magistrate, Court No.18, Sultanpur passed an order dated 15.03.2019
directing the police to register a case. In compliance thereof, FIR No.81 of
2019 was registered under Sections 457 and 380 IPC against petitioner nos.1
to 4, against whom allegations had been levelled in the application under
Section 156(3) Cr.P.C.
6. During investigation, the Investigating Officer recorded statement of the
complainant and he reiterated the allegations made in the application under
Section 156(3) Cr.P.C. In his additional statement, the complainant stated
that he had gone to some relative's place at about 6:00 p.m. on 25.12.2018.
At about 5:00 a.m. on 26.12.2018, some unnamed villager telephonically
informed him that the petitioner No.1 and his family members were taking
possession of his house. Upon receiving this information, he dialed 100 and
informed the police. The police reached the village and took the 'party' to the
police station. Thereafter, he went to Sultanpur for taking medicine. He
returned to his village at about 8:30 p.m. and found that the locks of his shop
and house had been broken open and the petitioner No.1 and his family
members were loading the goods from the shop and house on a four-wheeler

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pickup vehicle. The complainant stated that he again dialed 100, but the call
could not be connected. He also attempted to contact the police outpost and
the police station telephonically, but those calls too could not be connected.
Thereafter, he went to the police station, where the police assured him that
they would reach the spot. The complainant further stated that he waited at
the police station for some time. When he eventually returned to the spot, he
found that the accused persons had already removed all the articles and had
taken possession of the shop and the house.
7. In his additional statement, the complainant stated that he had personally
witnessed the accused persons removing the goods from his shop and house.
The complainant further stated that besides himself, Devinder alias Moti, son
of Sant Ram, Babu Ram son of Hublal, Santram son of Hublal and Rinku
son of Baburam had witnessed the incident.
8. Learned counsel for opposite party No. 2 pointed out that a copy of the
statement of the complainant's father Raghunath annexed with the petition is
incomplete. He produced a complete photocopy of statement of Raghunath
recorded by the Investigating Officer wherein he stated that he had retired
from the post of Sub-Inspector of Police in the year 2001 while he was
posted at Lucknow. He further stated that the petitioner No.1 belongs to his
village and his caste and he had previously resided with Raghunath at
Lucknow where he used to work as a Chowkidar in a hospital. Raghunath
further stated that on 25.12.2018, his son Tejbahadur (the opposite party No.
2) had gone to the house of some relatives. Raghunath and his grandson
Deepak were sleeping in the house. At about 5:00 a.m. on 26.12.2018, the
petitioner No.1 arrived there and asked Raghunath to leave the house. His
grandson Deepak got frightened. Thereafter, the police vehicle arrived and
took Raghunath and his grandson Deepak with them. They went with the
police after locking the house. One Jitendra Bahadur Singh resident of
Sonbarsa reached there and he asked that the persons from the side of the
petitioners should also be taken by the police. Thereupon, the police took
along Rinku, Baburam and Devindra (the petitioner Nos. 1, 3, and 4 as well).
9. At the police station, Raghunath and his grandson Deepak were detained
whereas Moti, Devindra and Rinku were released. Jitendra took them away
and thereafter the police allegedly set them free at about 9:00 p.m. Upon
returning home, the complainant found that the locks of the shop and the
house had been broken. Persons of Baburam (the petitioner No.1) were

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loading the goods on a tractor and a pickup vehicle.
10. Raghunath stated that he owned certain land at Lucknow. He had
executed a sale deed in respect of half of his land at Lucknow in favour of
the petitioner No.1 on the condition that the petitioner No.1 will give him
equal land in the village. The petitioner No.1 constructed a house on the land
given by Raghunath at Lucknow and he had been residing there for the past
18-19 years. Raghunath constructed a house in the year 2001 on the land of
petitioner No.1 in the village and had been residing there with his family.
Subsequently, the petitioner No. 1 demanded an additional sum of
Rs.50,000/- claiming that his land was situated on the roadside. Raghunath
paid the amount on 10.12.2005 and the petitioner No.1 gave an
acknowledgment written on a stamp paper. Thereafter, the petitioner No. 1
turned dishonest and he instituted Regular Suit No. 76 of 2006. Raghunath
stated that there was an electricity connection in the name of the complainant
Tejbahadur. He also alleged that the petitioner No.1 had obtained a stay
order dated 12.07.2010 by concealing material facts.
11. The Investigating Officer recorded the statement of Deepak (son of the
complainant and grandson of Raghunath). He stated that the Village Pradhan
got him and his grandfather Raghunath released from the police station and
brought them back to the village at about 9:00 p.m. He further stated that
villagers have clicked some photographs of the incident. According to him,
there was a photograph showing Devinder @ Moti breaking open the locks.
He further stated that several villagers had witnessed the family members of
petitioner No.1 forcibly entering the premises and looting the goods.
12. The Investigating Officer recorded the statements of independent
witnesses Rakesh Yadav, Brijnath and Surendra Kumar, who stated that
Baburam, Rinku, Kailashpati, Renu, Santram, Rajendra, Jagram @ Sanjay,
Sitaau Devi, Urmila etc. were taking out the goods hurriedly and were
loading them on a pickup vehicle.
13.Although the application under Section 156 (3) Cr.P.C. was filed
levelling allegations against 4 persons, the Investigating Officer submitted a
charge-sheet dated 13.06.2019 against nine accused persons (the petitioners)
for offences punishable under Sections 457 and 380 IPC. The trial Court
thereafter took cognizance of the offences on 20.01.2021.
14. The charge-sheet was submitted for offences punishable under Sections

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457 and 380 IPC. Thereafter, the Investigating Officer arrested two more
persons - one of the named accused persons Devendra alias Moti (the
petitioner no. 4) and Jagram (the petitioner No. 7, who was not named in the
FIR) on 04.08.2019 and showed recovery of a generator from their
possession. The Investigating Officer further showed recovery of an empty
LPG cylinder of Indane Gas from Rajendra son of Santram.
15. The petitioners filed an application under Section 227 Cr.P.C. on
11.08.2020 seeking their discharge. It was stated therein that, although the
application under Section 156(3) Cr.P.C. and the consequent FIR named
only four persons (the petitioner nos. 1 to 4) and it did not allege
involvement of any other named or unnamed persons, the Investigating
Officer submitted a charge-sheet against three additional persons.
16. On 30.07.2019, the Investigating Officer showed recovery of a generator
from a named accused Devendra @ Moti (the petitioner no. 4) and an
unnamed person Jagram alias Sanjay (the petitioner no. 7), who was not
named in the FIR. On the basis of the alleged recovery, Section 411 IPC was
added in the case. The petitioners contended that after submission of the
charge-sheet, the Investigating Officer had no authority to conduct further
investigation in the manner adopted by him. It was also stated that the trial
court had rejected the request for remand of the aforesaid accused persons
under Section 411 IPC, but their remand was subsequently allowed.
17. The petitioners filed an application under Section 227 Cr.P.C. on
11.08.2020 seeking their discharge. It was stated therein that, although the
application under Section 156(3) Cr.P.C. and the consequent FIR named
only four persons, namely petitioner Nos. 1 to 4, and did not disclose the
involvement of any other named or unnamed persons, the Investigating
Officer had nevertheless submitted a charge-sheet against five additional
persons.
18. It was further contended that, although the charge-sheet had already been
submitted on 30.07.2019, the Investigating Officer subsequently arrested
two accused persons, who were not named in the application under Section
156(3) Cr.P.C. or in the FIR, and thereafter showed recovery of a generator
and a gas cylinder. On the basis of the alleged recovery, Section 411 IPC
was added to the case.
19. The petitioners contended that after submission of the charge-sheet, the

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Investigating Officer had no authority to conduct further investigation in the
manner adopted by him. It was also stated that the trial court had rejected the
request for remand of the aforesaid accused persons under Section 411 IPC,
though their remand was subsequently permitted.
20. It was further stated in the discharge application that the Investigating
Officer had submitted a charge-sheet against Renu Kumari, petitioner No. 6,
although she was employed at Chitrakoot with "Charcha Aaj Ki". The Editor
of "Charcha Aaj Ki" had allegedly furnished a written statement certifying
that Renu Kumari had continuously attended her duties at Chitrakoot till
25.05.2019.
21. The discharge application was rejected by the impugned order dated
16.01.2024. The trial court observed that from the material collected during
investigation, offences under Sections 457 and 380 IPC were prima facie
made out against all the accused persons and, therefore, no ground existed
for discharging them. The revisional court affirmed the aforesaid order.
22. Challenging the validity of the aforesaid orders, learned counsel for the
petitioners submitted that the learned Magistrate has rejected the discharge
application in a mechanical manner without examining whether even a prima
facie case was made out against the petitioners on the basis of the material
available on record. In support of his submissions, learned counsel for the
petitioners placed reliance upon the judgments of the Hon'ble Supreme
Court reported in :
Tuhin Kumar Biswas versus State of West Bengal
2025 SCC OnLine SC 2604 and Ram Prakash Chadha versus State of
Uttar Pradesh : (2024) 10 SCC 651.
23. On the other hand, learned counsel for opposite party No. 2 placed
reliance upon the decision of the Hon'ble Supreme Court in Manjit Singh
: (2023) 7 SCC 633 and upon a
Virdi v. Hussain Mohammed Shattaf
judgment rendered by a Coordinate Bench of this Court in Neeraj and two
others v. State of U.P. and another, reported in 2025 ASCLKO 45421,
wherein the Coordinate Bench had referred to numerous precedents
regarding the scope and ambit of Section 227 Cr.P.C.
24. Section 227 Cr.P.C. reads as follows: -
"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

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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."
25. In (2010) 9 SCC 368, the Hon'ble Supreme
Sajjan Kumar v. CBI:
Court considered various precedents on the scope of Sections 227 and 228
Cr.P.C. and culled out the following principles:-
"Exercise of jurisdiction under Sections 227 and 228 CrPC
21. On consideration of the authorities about the scope of
Sections 227 and 228 of the Code, the following principles
emerge:
(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.
(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.

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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
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.
(Emphasis added)
26. The aforesaid judgment has been followed by a Bench consisting of
three Hon'ble Judges of the Hon'ble Supreme Court in Ghulam Hassan
Beigh v. Mohd. Maqbool Magrey : (2022) 12 SCC 657.
27. In Manjit Singh Virdi v. Hussain Mohammed Shattaf : (2023) 7 SCC
633, the Hon'ble Supreme Court held that: -
" The settled proposition of law is that at the stage of
11. ...
hearing on the charges entire evidence produced by the
prosecution is to be believed. In case no offence is made out then
only an accused can be discharged. Truthfulness, sufficiency and
acceptability of the material produced can be done only at the
stage of trial. At the stage of charge, the court has to satisfy that
a prima facie case is made out against the accused persons.
Interference of the Court at that stage is required only if there is
strong reasons to hold that in case the trial is allowed to proceed,
the same would amount to abuse of process of the court."
28. In : (2024) 10 SCC 651, the
Ram Prakash Chadha v. State of U.P.
Hon'ble Supreme Court held that: -
" 27. ... in a case where an application is filed for discharge under
Section 227CrPC, it is an irrecusable duty and obligation of the
Court to apply its mind and answer to it regarding the existence

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of or otherwise, of ground for proceeding against the accused, by
confining such consideration based only on the record of the case
and the documents submitted therewith and after hearing the
submissions of the accused and the prosecution in that behalf. To
wit, such conclusion on existence or otherwise of ground to
proceed against the accused concerned should not be and could
not be based on mere suppositions or suspicions or conjectures,
especially not founded upon material available before the
Court...."
29. In Tuhin Kumar Biswas v. State of W.B. : 2025 SCC OnLine SC 2604,
it was held that: -
" ... where there is a pending civil dispute between the parties,
28.
the Police and the Criminal Courts must be circumspect in filing
a chargesheet and framing charges respectively. In a society
governed by rule of law, the decision to file a chargesheet should
be based on the Investigating Officer's determination of whether
the evidence collected provides a reasonable prospect of
conviction. The Police at the stage of filing of Chargesheet and
the Criminal Court at the stage of framing of Charge must act as
initial filters ensuring that only cases with a strong suspicion
should proceed to the formal trial stage to maintain the efficiency
and integrity of the judicial system. The tendency of filing
chargesheets in matters where no strong suspicion is made out
clogs the judicial system. It forces Judges, court staff, and
prosecutors to spend time on trials that are likely to result in an
acquittal. This diverts limited judicial resources from handling
stronger, more serious cases, contributing to massive case
backlogs. Undoubtedly, there can be no analysis at the charge
framing stage as to whether the case would end in conviction or
acquittal, but the fundamental principle is that the State should
not prosecute citizens without a reasonable prospect of
conviction, as it compromises the right to a fair process."
30. When the facts of the present case are examined in the light of the
judgments of the Hon'ble Supreme Court in the aforesaid cases, it appears
that while deciding an application for discharge, the Court is required to
examine the material placed by the prosecution for the limited purpose of

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satisfying itself as to whether the material gives rise to a grave suspicion that
the accused persons have committed the alleged offences.
31. In the present case, the incident is alleged to have taken place at about
7:00 p.m. on 26.12.2018. The complainant filed an application under Section
156(3) Cr.P.C. On 24.01.2019, i.e, after about a month since the occurrence,
against four persons only. In the application was filed about a month of the
incident, the petitioner Nos. 5 to 9 were not named.
32. In the statement recorded under Section 161 Cr.P.C., the complainant
reiterated the FIR version. In his additional statement, the informant stated
that, upon receiving information, he reached his house and found that the
petitioners had already established their possession over the shop and the
house.
33. The complainant's father, Raghunath, stated that he had seen the men of
Babu Ram (the petitioner no. 1) loading the goods on a tractor and a pickup
vehicle. Although Raghunath claimed to have witnessed removal of goods
by the associates of the petitioner No. 1, petitioner Nos. 5 to 9 were still not
named in the application under Section 156(3) Cr.P.C., which had been filed
after about one month from the date of the incident.
34. Petitioner Nos. 5 to 9 were subsequently implicated on the basis of the
statements of certain independent witnesses, who stated that all the accused
persons were seen loading the goods onto a four-wheeler pickup vehicle.
However, even those witnesses did not state that the aforesaid persons had
committed theft by breaking open the locks or had forcibly entered the house
and shop or that the goods were being loaded onto a tractor, as alleged by the
complainant's father, Raghunath.
35. Non-mention of the names of petitioner Nos. 5 to 9 in the application
under Section 156(3) Cr.P.C., which was filed about one month after the
incident, and the omission of their names in the statement of the
complainant's father, Raghunath, who claimed to have seen the men of Babu
Ram removing the goods, constituted relevant material which ought to have
been taken into consideration by the trial court while deciding the
application for discharge.
36. However, the trial court rejected the discharge application merely by
observing in a single sentence that the material collected during investigation

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disclosed the involvement of the petitioners in the commission of the
offence. The failure of the trial court to consider the aforesaid relevant
material vitiates the impugned order.
37. The revisional court also failed to examine this aspect of the matter and
affirmed the order of the trial court in a mechanical manner.
38. However, the case of the petitioner no. 7 Jagram is different from the
petitioner nos. 5, 6, 8 and 9 and it is alleged that the stolen generator was
recovered from him. In view of the prosecution's claim of recovery of a
stolen article from the possession of the petitioner no. 7, he is not entitled to
be discharged.
39. It does not appeal to common sense that had the ladies of the house been
involved in commission of the alleged offences, still they would not have
been named in the application under Section 156 (3) Cr.P.C. and in the
statement of the complainant's father, who claims to be an eye witness.
There implication only through subsequent statements of alleged eye-
witnesses, without they having been implicated in the application under
Section 156(3) Cr.P.C. Or in the statement of the complainant's father raises
a serious suspicion against the correctness of the statements of witnesses
alleging their involvement in commission of the offence and such statements
cannot be taken as gospel truth. The trial Court and the revisional Court have
failed to evaluate the material available on record and consider the total
effect of the basic infirmities in the prosecution evidence as noted above,
whereas it was necessary to be done to ascertain the broad probabilities of
the case. It appears that the trial court and the revisional court have acted
merely as a post office or a mouthpiece of the prosecution. Upon sifting and
weighing the evidence, it appears that even a prima facie case is not made
out against the persons who had not been named in the FIR or the statement
of Raghunath and from whom no recovery has been made.
40. In view of the aforesaid discussion, I am of the considered opinion that
petitioner Nos. 5, 6, 8 and 9, all of whom are ladies and whose names were
not mentioned in the application under Section 156(3) Cr.P.C. or in the
statement of the complainant's father, and nothing is said to have been
recovered from whom, appear to have been implicated by including their
names in the statements of witnesses later on as an afterthought and those
ladies are entitled to be discharged.

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41. However, no good ground exists for discharge of the petitioner Nos. 1 to
4, as they were specifically named in the application under Section 156(3)
Cr.P.C. and specific allegations were leveled against them or of the
petitioner no. 7, from whom the stolen generator is said to have been
recovered.
42. I do not find force submission in the learned Counsel for the petitioner
that pendency of a civil dispute gives rise to a ground for discharge of all the
petitioners. In Indian Oil Corpn. v. NEPC India Ltd. : (2006) 6 SCC 736,
the Hon'ble Supreme Court held that: -
"A given set of facts may make out: (a) purely a civil wrong; or
(b) purely a criminal offence; or (c) a civil wrong as also a
criminal offence. A commercial transaction or a contractual
dispute, apart from furnishing a cause of action for seeking
remedy in civil law, may also involve a criminal offence. As the
nature and scope of a civil proceeding are different from a
criminal proceeding, the mere fact that the complaint relates to a
commercial transaction or breach of contract, for which a civil
remedy is available or has been availed, is not by itself a ground
to quash the criminal proceedings. The test is whether the
"
allegations in the complaint disclose a criminal offence or not.
43. In the present case, the allegations clearly make out commission of
offences punishable in criminal law. Merely because there is a civil dispute
between the parties, it cannot be said that the petitioners cannot be
prosecuted for the allegations of commission of offences.
44. Accordingly, the petition is partly allowed . The prayer for discharge of
the petitioner no. 5 Kailashpati, the petitioner no. 6 Renu, the petitioner no. 8
Sitau Devi and the petitioner no. 9 Urmila, is allowed, whereas the prayer for
discharge of petitioner Nos. 1 to 4 and 7 is rejected.
May 8, 2026
-Amit K-
(Subhash Vidyarthi,J.)
Digitally signed by :-
AMIT KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench