Madhya Pradesh High Court
Arun Shakya @ Aryan Shakya vs The State Of Madhya Pradesh on 7 April, 2026
NEUTRAL CITATION NO. 2026:MPHC-GWL:11476
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
CRIMINAL REVISION No. 3130 of 2023
ARUN SHAKYA @ ARYAN SHAKYA
Versus
THE STATE OF MADHYA PRADESH AND ANOTHER
Appearance:
Shri Divakar Vyas - Advocate for the applicant.
Shri Vikram Pippal - Public Prosecutor for respondents/State.
Reserved on : 01/04/2026
Delivered on : 07/04/2026
ORDER
1 . The instant criminal revision filed under Section 397/401 of the
Code of Criminal Procedure, 1973 [hereinafter referred to as “Cr.P.C.”] takes
exception to the order dated 24.06.2023 (Annexure-P/1) passed by the II
Additional Sessions Judge, Sabalgarh, District Morena, whereby charges
have been framed against the applicant for commission of offenses under
Sections 366, 376(2)(n), 323, and Section 506 Part II of the Indian Penal
Code, 1860 [hereinafter referred to as “IPC“].
2. Brief facts leading to filing of the present criminal revision petition
are as under:
​2.1 On the complaint made by the prosecutrix aged about 20 years, an
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FIR bearing Crime No.122/2022 came to be registered against the applicant
for commission of offenses under Sections 376(2)(n), 323, 506 and 366 of
IPC.
2.2 As per the case of the prosecution, on 30.08.2022, the prosecutrix
received a phone call from the applicant stating that he had come to meet her,
and the prosecutrix was called near the canal. He told the prosecutrix that he
would marry her and on the pretext of marrying the prosecutrix, took her on
a motorcycle to Kailaras and thereafter to Morena and Delhi. In Delhi, the
applicant committed rape with the prosecutrix five times against her will. On
01.09.2022, he returned to Morena with the prosecutrix and left her at Joura
and fled. After completing the investigation, the challan was filed before thetrial Court, and thereafter, vide impugned order dated 24.06.2023, charges as
aforesaid have been framed against the applicant.
3. Learned counsel appearing for the applicant, by referring to the
statements of the prosecutrix recorded under Section 161 of the Cr.P.C. on
01.09.2022, indicates that the prosecutrix herself admits that she was
knowing the applicant for the last nearly two years and for this reason, since
she was the consenting party, she on her own volition left for Delhi with the
applicant. He submits that since the prosecutrix was 20 years of age and was
adult enough to understand things, it cannot be said that the applicant has
committed sexual intercourse with the prosecutrix on false pretext of
marriage. He submits that the prosecutrix tried to develop her case further
against the applicant in her statements subsequently recorded and in her
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court statements recorded under Section 164 of the Cr.P.C., she has further
developed the story and has stated that apart from the applicant, the friend of
the applicant also committed rape on her.
4. Counsel for the applicant also, by referring to the MLC report of the
prosecutrix, submits that no sign of any forceful intercourse on the
prosecutrix is evident. Insofar as the DNA report is concerned, he submits
that since the applicant was the consenting party, the DNA report being
positive is of no consequence. He submits that since it is the case of
relationship with consent, the offenses as framed by the learned trial Court
vide impugned order dated 24.06.2023 are not made out from the material
available on record. In support of his contention, learned counsel places
reliance upon certain orders passed by the Coordinate Bench of this Court,
which are as follows:
(A)M.Cr.C No.45389/2021 (Satendra Rathore vs. State of M.P. and
Another), order dated 28.03.2022.
(B)Cr.R. No.1651/2018 (Ramprasad Bediya vs. State of M.P.), order
dated 01.08.2018.
(C)Cr.A. No.14633/2023 (Pushpraj Dangi and Another vs. State of
M.P. and Another), order dated 13.12.2024.
5. On the other hand, counsel appearing for the State supports the
order impugned and the charges framed against the applicant. He submits
that at this stage, it cannot be ascertained as to whether the promise for
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marriage made by the applicant to the prosecutrix had any mala fide motives
and whether it is the case of rape or consensual sex. These are the matters
which are required to be established in a regular trial. Within the limited
scope of revisional jurisdiction conferred on this Court under Section 397 of
the Cr.P.C., the order impugned in the present revision petition may not be
interfered with, and therefore, the revision deserves dismissal.
6. No other point has been pressed by learned counsel appearing for
the parties.
​7. Heard learned counsel for the parties and perused the record.
8. The scope of interference and exercise of jurisdiction under Section
397 of Cr.P.C. has been time and again explained by the Apex Court.
Further, the scope of interference under Section 397 Cr.P.C. at a stage, when
charge had been framed, is also well settled. At the stage of framing of a
charge, the court is concerned not with the proof of the allegation. Rather, it
has to focus on the material and form an opinion whether there is strong
suspicion that the accused has committed an offence, which if put to trial,
could prove his guilt. The framing of charge is not a stage, at which stage
final test of guilt is to be applied. Thus, to hold that at the stage of framing
the charge, the court should form an opinion that the accused is certainly
guilty of committing an offence, is to hold something which is neither
permissible nor is in consonance with scheme of Code of Criminal
Procedure.
9 . Now, reverting to the limit of the scope of jurisdiction under
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Section 397 Cr. P.C., which vests the court with the power to call for and
examine the records of an inferior court for the purposes of satisfying itself
as to the legality and regularity of any proceedings or order made in a case.
The object of this provision is to set right a patent defect or an error of
jurisdiction or law or the perversity which has crept in the proceeding.
10. It is useful to refer to judgment of the Apex Court in Amit Kapoor
and Ramesh Chander and Another, (2012) 9 SCC 460 , where scope of
Section 397 Cr. P.C. has been succinctly considered and explained. Para 12
and 13 of Amit Kapoor (supra) are as follows:
“12.Section 397 of the Code vests the court with the power
to call for and examine the records of an inferior court for
the purposes of satisfying itself as to the legality and
regularity of any proceedings or order made in a case. The
object of this provision is to set right a patent defect or an
error of jurisdiction or law. There has to be a well-founded
error and it may not be appropriate for the court to
scrutinize the orders, which upon the face of it bears a token
of careful consideration and appear to be in accordance with
law. If one looks into the various judgments of this Court, it
emerges that the revisional jurisdiction can be invoked
where the decisions under challenge are grossly erroneous,
there is no compliance with the provisions of law, the
finding recorded is based on no evidence, material evidence
is ignored or judicial discretion is exercised arbitrarily or
perversely. These are not exhaustive classes, but are merely
indicative. Each case would have to be determined on its
own merits.”
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the inbuilt
restrictions is that it should not be against an interim or
interlocutory order. The Court has to keep in mind that the
exercise of revisional jurisdiction itself should not lead to
injustice ex facie. Where the Court is dealing with the
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question as to whether the charge has been framed properly
and in accordance with law in a given case, it may be
reluctant to interfere in exercise of its revisional jurisdiction
unless the case substantially falls within the categories
aforestated. Even framing of charge is a much advanced
stage in the proceedings under the CrPC.”
11. The Apex Court in para 27 has recorded its conclusion and laid
down principles to be considered for exercise of jurisdiction under Section
397 particularly in context of quashing of charge framed under Section 228
Cr.P.C. Para 27, 27(1), (2), (3), (9), (13) are reproduced herein as follows:
“27. Having discussed the scope of jurisdiction under these
two provisions, i.e., Section 397 and Section 482 of the
Code and the fine line of jurisdictional distinction, now it
will be appropriate for us to enlist the principles with
reference to which the courts should exercise such
jurisdiction. However, it is not only difficult but is
inherently impossible to state with precision such
principles. At best and upon objective analysis of various
judgments of this Court, we are able to cull out some of the
principles to be considered for proper exercise of
jurisdiction, particularly, with regard to quashing of charge
either in exercise of jurisdiction under Section 397 or
Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court
under Section 482 of the Code but the more the power, the
more due care and caution is to be exercised in invoking
these powers. The power of quashing criminal proceedings,
particularly, the charge framed in terms of Section 228 of
the Code should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the
case and the documents submitted therewith prima facie
establish the offence or not. If the allegations are so patently
absurd and inherently improbable that no prudent person
can ever reach such a conclusion and where the basic
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Court may interfere.
27.3. The High Court should not unduly interfere. No
meticulous examination of the evidence is needed for
considering whether the case would end in conviction or not
at the stage of framing of charge or quashing of charge.
27.9. Another very significant caution that the courts have
to observe is that it cannot examine the facts, evidence and
materials on record to determine whether there is sufficient
material on the basis of which the case would end in a
conviction; the Court is concerned primarily with the
allegations taken as a whole whether they will constitute an
offence and, if so, is it an abuse of the process of court
leading to injustice.
27.13. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even broadly
satisfied, the Court should be more inclined to permit
continuation of prosecution rather than its quashing at that
initial stage. The Court is not expected to marshal the
records with a view to decide admissibility and reliability of
the documents or records but is an opinion formed prima
facie.”
12. When the facts of the case are examined in light of the settled
principles of law as stated hereinabove, then as per the prosecution story, on
30.08.2022, the applicant called the prosecutrix near the canal on the pretext
of meeting her and assured her that he would marry her. Thereafter, he took
her on a motorcycle to Kailaras, then to Morena and further to Delhi. It is
alleged that during the period from 30.08.2022 to 01.09.2022, while the
prosecutrix was kept with the applicant at Delhi, he committed sexual
intercourse with her on multiple occasions against her will. On 01.09.2022,
the applicant brought the prosecutrix back to Morena, left her at Joura and
fled from the spot.
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13. On the other hand,the applicant contends that the prosecutrix was a
consenting party and had voluntarily accompanied the applicant, as also that
there are no signs of forceful intercourse in the medical report.
1 4 . Sexual intercourse without consent of a woman constitutes
offence of rape under Section 375 and 376 of the IPC. Section 90 of the IPC
explains that a consent is not such a consent as is intended by any section of
this Code, if the consent is given by a person under a misconception of fact
and if the person doing the act knows, or has reason to believe, that the
consent was given in consequence of such misconception. The element of
consent in the offence of rape has been dealt with by the Supreme Court in
the case of Uday v. State of Karnataka, (2003) 4 SCC 46 wherein it has held
as follows:
“….In Stroud’s Judicial Dictionary (Fifth Edition) page 510
“consent” has been given the following meaning :-
“Consent is an act of reason, accompanied with
deliberation, the mind weighing, as in a balance, the
good and evil on each side.”
It refers to the case of Holman v. The Queen : (1970) WAR
2 wherein it was held that “there does not necessarily have
to be complete willingness to constitute consent. A
woman’s consent to intercourse may be hesitant, reluctant
or grudging, but if she consciously permits it there is
consent’ “.
Similar was the observation in R. v. Olugboja : (1981) 3
WLR 585 wherein it was observed that “consent in rape
covers states of mind ranging widely from actual desire to
reluctant acquiescence, and the issue of consent should not
be left to the jury without some further direction”.
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Stephen, J. in Queen v. Clarence (1888) 22 QBD 23
observed – “It seems to me that the proposition that fraud
vitiates consent in criminal matters is not true if taken to
apply in the fullest sense of the word, and without
qualification. It is too short to be true, as a mathematical
formula is true.”
Wills, J. observed – “the consent obtained by fraud is not
consent at all is not true as a general proposition either in
fact or in law. If a man meets a woman in the street and
knowingly gives her bad money in order to procure her
consent to intercourse with him, he obtains her consent by
fraud, but it would be childish to say that she did not
consent.” 11. Some of the decisions referred to in Words
and Phrases – Permanent Edition Volume 8A at page 205
have held “that adult female’s understanding of nature and
consequences of sexual act must be intelligent
understanding to constitute ‘consent’. Consent within penal
law, defining rape, requires exercise of intelligence based
on knowledge of its significance and moral quality and
there must be a choice between resistance and assent. Legal
consent, which will be held sufficient in a prosecution for
rape, assumes a capacity to the person consenting to
understand and appreciate the nature of the act committed,
its immoral character, and the probable or natural
consequences which may attend it. (See : People v. Perry,
26 Cal. App. 143).
11. Some of the decisions referred to in Words and Phrases,
Permanent Edition, Vol. 8A at p. 205 have held
“that adult female’s understanding of nature and
consequences of sexual act must be intelligent
understanding to constitute ‘consent’. Consent within
penal law, defining rape, requires exercise of intelligence
based on knowledge of its significance and moral quality
and there must be a choice between resistance and
assent. Legal consent, which will be held sufficient in a
prosecution for rape, assumes a capacity to the person
consenting to understand and appreciate the nature of the
act committed, its immoral character, and the probable or
natural consequences which may attend it”.
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(See People v. Perry [26 Cal App 143] .)
12. The courts in India have by and large adopted these
tests to discover whether the consent was voluntary or
whether it was vitiated so as not to be legal consent. In Rao
Harnarain Singh Sheoji Singh v. State [AIR 1958 Punj 123
: 1958 Cri LJ 563 : 59 Punj LR 519] it was observed: (AIR
p. 126, para 7)
“7. A mere act of helpless resignation in the face of
inevitable compulsion, quiescence, non-resistance, or
passive giving in, when volitional faculty is either
clouded by fear or vitiated by duress, cannot be deemed
to be ‘consent’ as understood in law. Consent, on the
part of a woman as a defence to an allegation of rape,
requires voluntary participation, not only after the
exercise of intelligence, based on the knowledge, of the
significance and moral quality of the act, but after having
freely exercised a choice between resistance and assent.
Submission of her body under the influence of fear or
terror is no consent. There is a difference between
consent and submission. Every consent involves a
submission but the converse does not follow and a mere
act of submission does not involve consent. Consent of
the girl in order to relieve an act, of a criminal character,
like rape, must be an act of reason, accompanied with
deliberation, after the mind has weighed as in a balance,
the good and evil on each side, with the existing capacity
and power to withdraw the assent according to one’s will
or pleasure.”…”
[Emphasis Supplied]
15. Moreover, the Apex Court further held that there is no straitjacket
formula for determining whether consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given under a misconception of fact.
To determine whether the consent was obtained by misconception of fact, it
must be examined that consent was given under a misconception of fact and
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secondly, that the person who obtained the consent knew, or had reason to
believe that the consent was given in consequence of such misconception.
The relevant paras of Uday (supra) in this regard are reproduced herein:
“21. It therefore appears that the consensus of judicial
opinion is in favour of the view that the consent given by
the prosecutrix to sexual intercourse with a person with
whom she is deeply in love on a promise that he would
marry her on a later date, cannot be said to be given under a
misconception of fact. A false promise is not a fact within
the meaning of the Code. We are inclined to agree with this
view, but we must add that there is no straitjacket formula
for determining whether consent given by the prosecutrix to
sexual intercourse is voluntary, or whether it is given under
a misconception of fact. In the ultimate analysis, the tests
laid down by the courts provide at best guidance to the
judicial mind while considering a question of consent, but
the court must, in each case, consider the evidence before it
and the surrounding circumstances, before reaching a
conclusion, because each case has its own peculiar facts
which may have a bearing on the question whether the
consent was voluntary, or was given under a misconception
of fact. It must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove each and
every ingredient of the offence, absence of consent being
one of them.
25. There is yet another difficulty which faces the
prosecution in this case. In a case of this nature two
conditions must be fulfilled for the application of Section
90 IPC. Firstly, it must be shown that the consent was given
under a misconception of fact. Secondly, it must be proved
that the person who obtained the consent knew, or had
reason to believe that the consent was given in
consequence of such misconception. We have serious
doubts that the promise to marry induced the prosecutrix to
consent to having sexual intercourse with the appellant. She
knew, as we have observed earlier, that her marriage with
the appellant was difficult on account of caste
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opposition from members of both families. There was
therefore a distinct possibility, of which she was clearly
conscious, that the marriage may not take place at all
despite the promise of the appellant. The question still
remains whether even if it were so, the appellant knew, or
had reason to believe, that the prosecutrix had consented to
having sexual intercourse with him only as a consequence
of her belief, based on his promise, that they will get
married in due course. There is hardly any evidence to
prove this fact. On the contrary, the circumstances of the
case tend to support the conclusion that the appellant had
reason to believe that the consent given by the prosecutrix
was the result of their deep love for each other. It is not
disputed that they were deeply in love. They met often, and
it does appear that the prosecutrix permitted him liberties
which, if at all, are permitted only to a person with whom
one is in deep love. It is also not without significance that
the prosecutrix stealthily went out with the appellant to a
lonely place at 12 o’clock in the night. It usually happens in
such cases, when two young persons are madly in love, that
they promise to each other several times that come what
may, they will get married. As stated by the prosecutrix the
appellant also made such a promise on more than one
occasion. In such circumstances the promise loses all
significance, particularly when they are overcome with
emotions and passion and find themselves in situations and
circumstances where they, in a weak moment, succumb to
the temptation of having sexual relationship. This is what
appears to have happened in this case as well, and the
prosecutrix willingly consented to having sexual
intercourse with the appellant with whom she was deeply in
love, not because he promised to marry her, but because
she also desired it. In these circumstances it would be very
difficult to impute to the appellant knowledge that the
prosecutrix had consented in consequence of a
misconception of fact arising from his promise. In any
event, it was not possible for the appellant to know what
was in the mind of the prosecutrix when she consented,
because there were more reasons than one for her to
consent.”
[Emphasis Supplied]
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16. In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, it was
held that there is a distinction between the mere breach of a promise, and not
fulfilling a false promise. For the purposes of determining rape on the basis
of false promise to marry, the court must examine whether there was made,
at an early stage a false promise of marriage by the accused; and whether the
consent involved was given after wholly understanding the nature and
consequences of sexual indulgence. The relevant paras of the same are
reproduced herein as follows:
“20. Rape is the most morally and physically reprehensible
crime in a society, as it is an assault on the body, mind and
privacy of the victim. While a murderer destroys the
physical frame of the victim, a rapist degrades and defiles
the soul of a helpless female. Rape reduces a woman to an
animal, as it shakes the very core of her life. By no means
can a rape victim be called an accomplice. Rape leaves a
permanent scar on the life of the victim, and therefore a
rape victim is placed on a higher pedestal than an injured
witness. Rape is a crime against the entire society and
violates the human rights of the victim. Being the most
hated crime, rape tantamounts to a serious blow to the
supreme honour of a woman, and offends both, her esteem
and dignity. It causes psychological and physical harm to
the victim, leaving upon her indelible marks.
21. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. Consent is
an act of reason, accompanied by deliberation, the mind
weighing, as in a balance, the good and evil on each side.
There is a clear distinction between rape and consensual sex
and in a case like this, the court must very carefully
examine whether the accused had actually wanted to marry
the victim, or had mala fide motives, and had made a false
promise to this effect only to satisfy his lust, as the latter
falls within the ambit of cheating or deception. There is a
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fulfilling a false promise. Thus, the court must examine
whether there was made, at an early stage a false promise
of marriage by the accused; and whether the consent
involved was given after wholly understanding the nature
and consequences of sexual indulgence. There may be a
case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the
accused, and not solely on account of misrepresentation
made to her by the accused, or where an accused on
account of circumstances which he could not have
foreseen, or which were beyond his control, was unable to
marry her, despite having every intention to do so. Such
cases must be treated differently. An accused can be
convicted for rape only if the court reaches a conclusion
that the intention of the accused was mala fide, and that he
had clandestine motives.”
[Emphasis Supplied]
17. Adverting now to the facts of the present case, the prosecutrix in
her Section 161 as well as Section 164 statement has maintained her stance
that on 30.08.2022, the applicant on account of false promise of marriage
took her on a motorcycle from Choti Mamchon to Kailaras and from there,
he took her to Morena and from Morena, he took her to a room in Shashtri
Nagar, Delhi where he committed rape on her against her will for five times.
The prosecutrix has further stated that thereafter, the applicant brought the
prosecutrix from Delhi to Morena by bus on 1.09.2022 at around 8:00 P.M.
in the evening and from there he brought her to Joura and left her there.
18. In the considered opinion of this court, the issue involved in the
present case is, whether the consent of the prosecutrix was vitiated by a false
promise of marriage given by the applicant at the inception. This is a
question of fact, which depends upon the intention of the applicant at the
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time of making such promise. Such question cannot be conclusively decided
without recording evidence. Moreover, it is well settled that at the stage of
framing of charge, the material brought on record by the prosecution is only
to be evaluated by the Court for the limited purpose of finding out whether a
prima facie case is made out. At this stage, the defence sought to be raised by
the applicant is a matter of trial.
19. Upon perusal of the record, the material brought on record by the
prosecution is sufficient to frame charge against the applicant. Whether the
material would be sufficient to convict the applicant or not, is not the issue at
this stage. The possibility of conviction or acquittal after a full-fledged trial
cannot be gone into while deciding the present revision against the order
framing charge. Moreover, the question of fact, as observed above, cannot be
addressed at this stage on the basis of the defence taken by the applicant. The
said question needs to be tested on the basis of evidence.
20. Insofar as the reliance placed by learned counsel for the applicant
upon the orders passed in Satendra Rathore(supra), Ramprasad Bediya
(supra) and Pushpraj Dangi(supra) is concerned, the said judgments are
distinguishable on facts.In Pushpraj Dangi (supra), the Coordinate Bench
found that the allegations of rape were not part of the initial version and were
introduced subsequently after multiple statements under Section 161 of
Cr.P.C., thereby casting serious doubt on the prosecution case itself. It was in
those peculiar circumstances that the proceedings were quashed.Similarly, in
Ramprasad Bediya (supra) , the prosecutrix was a well-educated adult
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woman, who remained in a prolonged live-in type relationship with the
accused for about four years, fully aware of the nature and consequences of
her acts, and continued the relationship despite repeated conduct of the
accused indicating unwillingness to marry. On those admitted facts, the
Court found that the consent was not vitiated by misconception of fact, even
on the face of the FIR itself.Likewise, in Satendra Rathore (supra), the
statement under Section 164 of Cr.P.C., demonstrated a long-standing
consensual relationship of about three years, including voluntary meetings,
travel, and continued association even after the first alleged incident, leading
the Court to conclude that it was, at best, a case of breach of promise and not
a false promise from inception, and therefore continuation of prosecution
was held to be an abuse of process.However, the factual matrix of the
present case stands on an entirely different footing. Unlike the cases relied
upon by the applicant, this is not a case where, on the face of the prosecution
material itself, the relationship can be conclusively termed as purely
consensual or where the allegations appear inherently improbable. Rather,
the material on record gives rise to a strong suspicion regarding the
involvement of the applicant, which is sufficient for the purpose of framing
of charge. Therefore, the aforesaid judgments are of no assistance to the
applicant at this stage
2 1 . A perusal of the impugned order passed by the learned II
Additional Sessions Judge shows that the learned Judge has taken into
consideration the material available on record and, on that basis, framed the
charges against the applicant. No illegality, perversity or jurisdictional error
Signature Not Verified
Signed by: ADNAN HUSAIN
ANSARI
Signing time: 4/8/2026
10:42:07 AM
NEUTRAL CITATION NO. 2026:MPHC-GWL:11476
17 CRR-3130-2023
can be found in the impugned order.
22. Accordingly, the present criminal revision being devoid of any
merits is hereby dismissed. The order dated 24.06.2023 passed by the II
Additional Sessions Judge, Sabalgarh, District Morena is hereby affirmed. It
is made clear that the observations made hereinabove are only for the
purpose of deciding the present revision and the trial Court shall not be
influenced by the same while deciding the case on merits.
(AMIT SETH)
JUDGE
Adnan
Signature Not Verified
Signed by: ADNAN HUSAIN
ANSARI
Signing time: 4/8/2026
10:42:07 AM
