1 2025:CGHC:52509 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 3512 of 2024 1 - Smt. Pratibha Pandey W/o Suresh Pandey Aged About 30 Years Occupation Housewife, R/o Dharsinwa, P.S. Dharsinwa, District Raipur Chhattisgarh. 2 - Smt. Mamta Pandey W/o Gitesh Pandey Aged About 42 Years Occupation Housewife, R/o Dharsinwa, P.S. Dharsinwa, District Raipur Chhattisgarh. 3 - Smt. Manisha Shukla W/o Late Neelshyam Shukla Aged About 35 Years R/o Dharsinwa, P.S. Dharsinwa, District Raipur Chhattisgarh. 4 - Ku. Nikita Pandey D/o Dinesh Pandey Aged About 23 Years Occupation Law Student, R/o Dharsinwa, P.S. Dharsinwa, District Raipur Chhattisgarh. 5 - Boby Pandey S/o Dinesh Pandey Aged About 20 Years R/o Dharsinwa, P.S. Dharsinwa, District Raipur Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station, Dharsinwa, District Raipur Chhattisgarh. 2 - Mohd. Ishahaq Khan S/o Mohd. Kasim Aged About 50 Years R/o Ward No. 8, Dharsinwa, Police Station, Dharsinwa, District Raipur Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Aditya Khare, Advocate For Respondent/ State For Respondent No. 2 : : Ms. Pragya Shrivastava, Dy. G.A. Ms. Sonia Kuldeep, Advocate SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.12.10 18:32:11 +0530 2 Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 28.10.2025 1. The present Cr. M.P. has been filed under Section 528 of B. N. S. S. by the petitioners against the impugned order dated 13.09.2024 passed by learned Judicial Magistrate, First Class, Raipur in Criminal Case No. 17100/2022, whereby the application filed by the petitioners under Section 239 of Cr.P.C. has been rejected and directed the petitioners to remain present on the next date of hearing for framing of charge. 2. The brief facts of the case are that the petitioners are the accused persons in the offence of Crime No. 436/2020 registered at P.S. Dharsiva, Dist- Raipur for the offence under Section 294, 323, 506 and 34 of IPC. There is an allegation against the petitioners that on 11.10.2020, when the complainant Mohd. Ishaq had gone to his plot where he was kept the building material and had gone along with his wife, he saw that the accused Suresh Pandey and his family members constructing boundary wall there and at about 12.30 pm, the accused persons Suresh Pandey, Gitesh Pandey, sister-in-law of Suresh Pandey, wife of Suresh Pandey and others started abusing them and assaulted by Danda by which he received injuries. His wife has also been assaulted by the accused persons and they thrown them on the ground. The incident was witnessed by Ayan Khan and Shohail Khan, who intervened in the quarrel. On the report lodged by Mohd. Ishaq, FIR was registered and after investigation initially, the charge-sheet was filed against three accused persons and subsequently, a supplementary charge-sheet has been filed against total 07 accused persons including the present petitioners. 3 3. The petitioners had filed an application under Section 239 of Cr.P.C. before the learned trial Court on 18.01.2023 for their discharge from the case. After hearing the parties, learned trial Court rejected the application filed by the petitioners vide order dated 13.09.2024 (wrongly mentioned the date 13.09.2020), which is under challenge in the present petition. 4. Learned counsel for the petitioners would submit that there is no prima facie evidence against the petitioners to prosecute them for the alleged offence. From the statement of the witnesses, there is no involvement of the present petitioners, however, after a long time, the statement of other witnesses have been recorded in which they implicated the present petitioners in the alleged offence and then a supplementary charge-sheet has been filed against them which prima facie disclosed mala fide on the part of complainant as well as investigating officer. Had there been involvement of the present petitioners in the alleged offence, the complainant and his family members must have disclosed their names but none of the family members of the complainant have named the petitioners and initially a charge-sheet was filed against three accused persons namely Suresh Pandey, Gitesh Pandey and Boby Pandey on 31.12.2021. After about 10 months, the statement of two other witnesses Himanshu Shekhar and Lokesh Mishra recorded in which they disclosed the names of the present petitioners and then the supplementary charge-sheet was filed against total 07 accused persons including the present petitioners. The name of two witnesses Himanshu Shekhar and Lokesh Mishra have not been disclosed by the complainant that they were the eye witnesses to the incident and thus, these two witnesses are planted witnesses only to implicate the 4 petitioners in the alleged offence. Therefore, there is no sufficient material against the petitioners in the charge-sheet and they are entitled for their discharge. 5. On the other hand, learned counsel for the State would supported the impugned order and submitted that there is involvement of the petitioners in the alleged offence which has been supported by the statement of Himanshu Shekhar and Lokesh Mishra. Whether or not, the statement of these two witnesses are reliable has to be considered during the course of trial, however, the fact remains that there are the evidence against the petitioners that they are also involved in the offence. 6. Learned counsel for the Respondent No. 2 have also supported the impugned order passed by learned trial Court and submitted that there is sufficient prima facie evidence against them and to frame charge and to proceed with the trial. 7. I have heard learned counsel for the parties and perused the material annexed with the petition. 8. Section 239 of Cr.P.C. provided as to when the accused may be discharged. The provisions of Section 239 of Cr.P.C. is necessary to note hear, which reads as under :- Section 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. 9. From perusal of the provisions of Section 239 of Cr.P.C., it transpires 5 that after examination of document, if the trial Court considers the charge against the accused to be groundless, he shall discharge the accused. In the present case, the respondent No. 2 has lodged a complaint that on 01.10.2020, the accused Suresh Pandey and his family members, brother Gitesh Pandey, sister in law of Suresh Pandey, wife of Suresh and others have assaulted the complainant. The nephew of Suresh and others have also committed the offence. The statement of these two witnesses Himanshu Shekhar and Lokesh Mishra, disclosed that the accused Manisha Shukla is the sister of Suresh, Nikita Pandey is niece of Suresh, Mamta Pandey is sister in law of Suresh and Pratibha Pandey is wife of Suresh and all of them were assaulted the complainant and abusing them, though, the statement of these two witnesses are recorded after some time, however, at this stage, it cannot be said that their statement are not reliable or no offence against the petitioners prima facie appears to be made out from that statement. The evidence available on record is the subject matter of trial for which the charge-sheet has been filed against the accused persons. The learned trial Court after considering the material available on recorded considered that there is sufficient ground in the charge-sheet against the petitioners to proceed with the trial and they are not entitled for their discharge and rejected the application filed by the petitioners. The consideration of the learned trial Court is based on proper appreciation of material available in the charge-sheet and this Court does not find any perversity or illegality in the order impugned which warrants interference of this Court. 10. In the matter of State by Inspector of Police, Chennai Vs. S. Selvi & another, reported in 2018 (13) SCC 455, the scope of discharge of the 6 accused have bee discussed in para 6-10 of its judgment it has been held that:- 6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal, Dilawar Balu Kurane v. State of Maharashtra, Sajjan Kumar v. CBI, State v. A. Arun Kumar, Sonu Gupta v. Deepak Gupta, State of Orissa v. Debendra Nath Padhi, Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja 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 e 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, this Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: (SCC pp. 376-77, para 21) "(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. 7 (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." 8. This Court in State v. A. Arun Kumar, Sonu Gupta v. Deepak Gupta, State of Orissa v. Debendra Nath Padhi and State of T.N. v. N. Suresh Rajan has reiterated almost the aforementioned principles. However, in State of Harvana v. Bhajan Lal, relied upon by the counsel for Respondent 1 is not applicable to the facts of the case inasmuch as the said matter arose out of the of judgment of the High Court quashing the entire criminal proceedings inclusive of the registration of first information report. The said matter was not concerned with the discharge of the accused. 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 along with the relevant documents 8 proceeded to the residence of accused 1 and 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. 10. If on the basis of the material on record, the Court would form prima facie opinion that the accused might have committed the offence, it can frame charge, though for conviction it is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of charges, the probative value of the material on record has to be gone into and the Court is not expected to go deep into the matter and hold that the materials would not warrant conviction. The Court is required to evaluate the material on record at the stage of Sections 227 or 239 of the Code, as the case may be, only with a view to find out if the 9 facts emerging therefrom taken at the face value discloses the existence of all the ingredients constituting the alleged offence. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with the presumption that materials brought 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 offence. 11. In view of the facts and circumstances of the case, material available on record and the aforesaid judgment of the Hon’ble Supreme Court, I do not find any perversity or illegality in the order impugned which wants interference of this Court. Accordingly, the present Cr.MP is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge sagrika