Himachal Pradesh High Court
Assistant Collector vs M/S Seamx Industries Ltd & Ors on 7 July, 2026
2026:HHC:26976
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 23 of 2012
Reserved on: 25.06.2026
.
Date of Decision: 07.07.2026
Assistant Collector, Customs ...Petitioner
Versus
of
M/s Seamx Industries Ltd & Ors ...Respondents
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1Yes
For the Petitioner : Mr Vijay Arora, Senior Counsel
with M/s Hitansh Raj and Ankit
Chauhan, Advocates.
For Respondents No.1& 2 : Mr Rakesh Manta, Advocate.
For Respondent No.3 : Mr Aryan Manta, Advocate, vice
Mr T.K. Verma, Advocate.
Rakesh Kainthla, Judge
The present revision is directed against the order dated
12.09.2011 passed by the learned Judicial Magistrate First Class,
Nahan, District Sirmaur, H.P. (learned Trial Court) vide which the
respondents (accused before the learned Trial Court) were
discharged. (The parties shall hereinafter be referred to in the same
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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manner as they were arrayed before the learned Trial Court for
convenience)
2. Briefly stated, the facts giving rise to the present
.
revision are that the complainant filed a complaint against the
accused before the learned Trial Court for the commission of
offences punishable under Section 9 read with Section 9AA of
Central Excise Act, 1944 for evasion of central excise duty and non-
of
compliance of the final order dated 02.07.2001 passed by Customs
Excise and Gold (Control) Appellate Tribunal, New Delhi.
rt
3. It was asserted that the accused No.1 M/s Seamax
Industries Ltd. (SIL), was earlier working under the name and style
of M/s Seamax Steel Tubes (Pvt) Ltd. (SST). They were the
manufacturers of M.S pipes, SS Mast or Towers falling under the
Chapter Heading No. 7306.90 and 7308.20 of the Schedule to the
Central Excise Tariff Act, 1985. The Structural Galvanising Industry
(SGI) was situated inside the factory premises of SIL and was
engaged in galvanising. SIL manufactured black pipes and MS
pipes, and sent them to SGI for galvanisation without an exit
pass/gate pass entry. SGI did not pay any excise duty on the
galvanised pipes on the ground that the galvanisation of black pipe
did not attract any central excise duty. M.S. Black Pipes were
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exempted from central excise duty till 28.02.1994. Accused nos. 1 to
3 did not enter the galvanised product after galvanisation in the
record before its marketing. In this manner, MS pipes/black pipes
.
manufactured by SIL and galvanised by SGI were sent to the market
without payment of the excise duty. A search was conducted.
Balance sheets were checked, and it was found that there was
evasion of the excise duty. A show cause notice was served upon
of
the accused no. 1 to 3, who filed a reply, but it was not found
satisfactory. The proceedings were initiated against accused nos. 1
rt
to 3. Commissioner Central Excise Adjudication, Delhi, found
accused nos. 1 to 3 guilty and imposed the penalty. Accused Nos. 1
to 3 preferred appeals, and the Customs Excise & Gold (Control)
Appellate Tribunal modified the order and gave 8 weeks time to
comply with the terms and conditions imposed in the order.
However, the terms and conditions were not complied with. The
penalty was not deposited. Hence, a prosecution was launched for
evasion of the excise duty.
4. Learned Trial Court found sufficient reasons to summon
the accused. When the accused appeared, the pre-charge evidence
was recorded. The complainant examined Nitin Wappa (CW1), Jodh
Singh (CW2), Umesh Gupta (CW3), Ravi Barman (CW4), Kartar
Singh (CW5) and RK Goyal (CW6).
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5. Learned Trial Court held that the complainant relied
upon the show cause notice, and the orders passed by various
authorities in support of its complaint. A person cannot be held
.
liable merely because of some findings recorded by the Civil Court.
The complainant was required to lead proper evidence by
producing the documents showing how the evasion had taken
place. The witnesses also did not state that they had any personal
of
knowledge of the evasion. The Criminal Court cannot be taken as
an executing Court of the orders passed by the Civil Court. Hence,
rt
the accused were discharged.
6. Being aggrieved by the order passed by the learned Trial
Court, the complainant has filed the present revision asserting that
the learned Trial Court erred in discharging the accused. There was
sufficient material on record to show the complicity of the accused.
The penalties were imposed by the various authorities. The appeal
preferred by the accused was dismissed. The testimony of R.K.
Goyal (CW6), Assistant Commissioner of Central Excise, was
sufficient to frame the charges against the accused. The magistrate
has to see a prima facie case and not the case that can result in a
conviction. The accused can rarely be discharged at the stage of
framing the charges. The civil proceedings are distinct from the
criminal proceedings, and the judgment of the Civil Court is not
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binding upon the Criminal Court, but the order of adjudication
would have a persuasive effect on the criminal proceedings.
Therefore, it was prayed that the present revision be allowed and
.
the judgment passed by the learned Trial Court be set aside.
7. I have heard Mr Vijay Arora, learned Senior Counsel,
assisted by M/s Hitansh Raj & Ankit Chauhan, learned counsel for
the petitioner, Mr Rakesh Manta, learned counsel for respondents
of
No.1 and 2, and Mr Aryan Manta, Advocate, vice Mr T.K. Verma,
learned counsel for respondent No.3.
rt
8. Mr Vijay Arora, learned Senior Counsel for the
petitioner, submitted that the learned Trial Court erred in
discharging the accused. There was sufficient material on record to
frame the charges. The Court is concerned with a prima facie case
while framing the charges, and the material on record prima facie
established that there was an evasion. Therefore, he prayed that
the present revision be allowed and the order passed by the learned
Trial Court be set aside. He relied upon the judgment of Hon’ble
Supreme Court in M/s Rimjhim Ispat Limited and others vs. Union of
India and another 2025:INSC:901 in support of his submission.
9. Mr Rakesh Manta, learned counsel for respondents No.1
and 2, submitted that the Court has to see a case which, if
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unrebutted, would result in the conviction of the accused while
framing the charges. The complainant had relied upon the orders
passed by the Civil Court, and the learned Trial Court had rightly
.
held that the orders of the Civil Court are not binding upon the
Criminal Court. There is no infirmity in the order passed by the
learned Trial Court. Hence, he prayed that the present revision be
dismissed. He relied upon the judgment of Hon’ble Supreme Court
of
in Sunil Mehta and another vs. State of Gujarat and another (2019) 9
SCC 209 in support of his submission.
rt
10. Mr Aryan Manta, learned counsel for respondent No.3,
adopted the submissions of Mr Rakesh Manta, learned counsel for
respondents No.1 and 2 and prayed that the revision be dismissed.
11. I have given a considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. It was laid down by the Hon’ble Supreme Court in State
of Gujarat v. Dilip Singh Kishor Singh Rao, 2023 SCC OnLine SC 1294,
that the Judge has to determine whether or not sufficient grounds
exist to proceed against the accused on the basis of the material
placed before him. It was observed: –
“10. It is a 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::: Downloaded on – 07/07/2026 20:36:56 :::CIS
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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 for the offence
alleged. This Court in State of Tamil Nadu v. N. Suresh Rajan,
(2014) 11 SCC 709, adverted to the earlier propositions of law.
laid down on this subject, has held:
“29. We have bestowed our consideration to the rival
submissions and the submissions made by Mr Ranjit
Kumar commend us. True it is that at the time ofconsideration of the applications for discharge, the
court cannot act as a mouthpiece of the prosecution or
act as a post office and may sift evidence in order toof
find out whether or not the allegations made are
groundless so as to pass an order of discharge. It is
trite that at the stage of consideration of an application
for discharge, the court has to proceed with an
rt
assumption that the materials brought on record by
the prosecution are true and evaluate the saidmaterials and documents with a view to finding out
whether the facts emerging therefrom, taken at their
face value, disclose the existence of all the ingredients
constituting the alleged offence. At this stage, theprobative value of the materials 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 aconviction. In our opinion, what needs to be
considered is whether there is a ground for presumingthat the offence has been committed and not whether a
ground for convicting the accused has been made out.
To put it differently, if the court thinks that the
accused might have committed the offence on the
basis of the materials on record on its probative value,
it can frame the charge; though for conviction, the
court has to come to the conclusion that the accused
has committed the offence. The law does not permit a
mini-trial at this stage.”
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,
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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 the existence of a prima facie case, and
at this stage, the probative 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
of
made by the court at the stage of framing of the charge is to
test the existence of the prima-facie case. It is also held at
the stage of framing of charge, the court has to form a
presumptive opinion on the existence of factual ingredients
rt
constituting the offence alleged, and it is not expected to go
deep into the probative value of the material on record and to
check whether the material on record would certainly lead to
a conviction at the conclusion of the trial.
13. It was held in Vishnu Kumar Shukla vs. State of U.P., 2023
SCC OnLine SC 1582, that the Court has to see a prima facie case
while framing the charges even in warrants cases instituted
otherwise than on a police report. It was observed: –
15. Although the instant case pertains to Trial of Warrant-
Cases by Magistrates and is a case instituted on a police
report, meaning Sections 239-240, CrPC are relevant, we
also propose to glance at Section 245, CrPC (concerning trial
of warrant-cases by Magistrates apropos cases instituted
otherwise than on police report), as also Sections 227-228,
CrPC, which pertain to Trial before a Court of Session.
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
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Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 is
instructive:
’19. The essential difference of procedure in the trial of
a 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 broughtbefore the Magistrate, the Magistrate has to satisfy
himself that he has been supplied the necessary
documents like the police report, FIR, statementsof
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
rt
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 itunder 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, theMagistrate considers the charge to be groundless, he
would discharge the accused and record his reasons for sodoing. 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 thatthere 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 a trial, the
prosecution has only one opportunity to lead evidence,
and that too comes only after the charge is framed.
Xxx
22. In the warrant trial instituted otherwise than the
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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 reports. There had to be an
opportunity for the prosecution to lead evidence underSection 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 underof
Section 245(2) CrPC on the ground that the charge was
groundless.
24. Now, there is a clear difference in Sections 245(1)
rt
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 hasto consider whether 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 subsection (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
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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 the 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
of
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
rt
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
the charge sheet was submitted in the instant case and
cognisance 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
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finds the charge groundless, he has to discharge the
accused in terms of Section 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 therevisional jurisdiction of the High Court or the
Sessions Judge to contend that the charge-sheet
submitted under Section 173 CrPC and documents sentof
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
rt
charges are framed under Section 240 CrPC, the High
Court in its revisional jurisdiction would not be justified inrelying 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 whereforensic exigencies and formidable compulsions justify
such a course. We hasten to add that even in such
exceptional cases, the High Court can look into only thosedocuments 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 alreadynoticed, 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 the 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
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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) 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 more so not against
liberty. Paragraph 7 of Minakshi Bala (supra) does enable
of
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.
rt
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 that, notwithstanding the difference in the
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,
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after considering Ramesh Singh (supra), K P Raghavan v. M H
Abbas, AIR 1967 SC 740 and Almohan Das v. State of West
Bengal, (1969) 2 SCR 520, it was laid down as under:
’10. Thus, on 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 offinding out whether or not a prima facie case
against the accused has been made out.
of
(2) Where the materials placed before the Court
disclose a grave suspicion against the accused
which has not been properly explained, the
rt 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 possibleand the Judge is satisfied that the evidence
produced before him, while giving rise to
some suspicion but not grave suspicionagainst 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 whichunder 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 were
conducting a trial.'(emphasis supplied)::: Downloaded on – 07/07/2026 20:36:56 :::CIS
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14. It was laid down by the Hon’ble Supreme Court in
Vishnu Kumar Shukla v. State of U.P., (2023) 15 SCC 502: 2023 SCC
OnLine SC 1582 that the Court framing the charges has to see a
.
prima facie case. It is impermissible to examine the material
threadbare to determine whether the accused is likely to be
convicted or not. It was observed:
“12. The primary consideration at the stage of framing of
of
charge is the test of the existence of a prima facie case, and
at this stage, the probative value of materials on record need
not be gone into. This Court, by referring to its earlier
rt
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 that the nature of evaluation to bemade by the court at the stage of framing of the charge is to
test the existence of the prima facie case. It is also held at the
stage of framing of charge, the court has to form apresumptive opinion on the existence of factual ingredients
constituting the offence alleged, and it is not expected to go
deep into the probative value of the material on record and tocheck whether the material on record would certainly lead to
a conviction at the conclusion of the trial.
15. It was held in Ram Prakash Chadha v. State of U.P.,
(2024) 10 SCC 651: (2025) 1 SCC (Cri) 253: 2024 SCC OnLine SC 1709
that the Court can sift and weigh the evidence to determine if a
prima facie case exists against the accused. It was observed at page
661:
“24. In the light of the decisions referred supra, it is thus
obvious that it will be within the jurisdiction of the Court
concerned to sift and weigh the evidence for the limited
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against the accused concerned has been made out. We are of
the considered view that a caution has to be sounded for the
reason that the chances of going beyond the permissible
jurisdiction under Section 227CrPC, and entering into the
scope of power under Section 232CrPC, cannot be ruled out,.
as such instances are aplenty. In this context, it is relevant to
refer to a decision of this Court in Om Parkash Sharma v. CBI,
(2000) 5 SCC 679: 2000 SCC (Cri) 1014. Taking note of the
language of Section 227CrPC, is in negative terminology andthat the language in Section 232CrPC, is in the positive
terminology and considering this distinction between the
two, this Court held that it would not be open to the Courtof
while considering an application under Section 227CrPC, to
weigh the pros and cons of the evidence alleged
improbability and then proceed to discharge the accused
holding that the statements existing in the case therein are
rt
unreliable. It is held that doing so would be practically acting
under Section 232 CrPC, even though the said stage has notbeen reached. In short, though it is permissible to sift and
weigh the materials for the limited purpose of finding out
whether or not a prima facie case is made out against the
accused, on appreciation of the admissibility and theevidentiary value such materials brought on record by the
prosecution is impermissible as it would amount to denial of
opportunity to the prosecution to prove them appropriatelyat the appropriate stage besides amounting to exercise of the
power coupled with obligation under Section 232 CrPC,available only after taking the evidence for the prosecution
and examining the accused.
16. It was held in Yuvraj Laxmilal Kanther v. State of
Maharashtra, 2025 SCC OnLine SC 520, that the Court is not to
undertake a threadbare analysis of the material but to see if there is
sufficient material to frame charges. It was observed:
“16. Section 227 CrPC deals with discharge. What Section
227 CrPC contemplates is that if, upon consideration of the
record of the case and the documents submitted therewith
and after hearing the submissions of the accused and the::: Downloaded on – 07/07/2026 20:36:56 :::CIS
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prosecution in this behalf, the judge considers that there are
no sufficient grounds for proceeding against the accused, he
shall discharge the accused and record his reasons for doing
so. At the stage of consideration of discharge, the court is
not required to undertake a threadbare analysis of the.
materials gathered by the prosecution. All that is required to
be seen at this stage is that there are sufficient grounds to
proceed against the accused. In other words, the materials
should be sufficient to enable the court to initiate a criminaltrial against the accused. It may be so that at the end of the
trial, the accused may still be acquitted. At the stage of
discharge, the court is only required to consider whetherof
there are sufficient materials that can justify the launch of a
criminal trial against the accused. By its very nature, a
discharge is at a higher pedestal than an acquittal. Acquittal
is at the end of the trial process, may be for a technicality or
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on the benefit of doubt, or the prosecution could not prove
the charge against the accused; but when an accused isdischarged, it means that there are no materials to justify
the launch of a criminal trial against the accused. Once he is
discharged, he is no longer an accused.”
17. It was held in Tuhin Kumar Biswas v. State of W.B., 2025
SCC OnLine SC 2604, that if there is a suspicion as opposed to a
grave suspicion, the Court has to discharge the accused. It was
observed:
15. This Court has recently in Ram Prakash Chadha v. State of
UP (2024) 10 SCC 651 : (2025) 1 SCC (Cri) 253, cited with
approval earlier decisions of this Court in Stree Atyachar
Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715:
1989 SCC (Cri) 285; P. Vijayan v. State of Kerala, (2010) 2 SCC
398 : (2010) 1 SCC (Cri) 1488; and Union of India v. Prafulla
Kumar Samal, (1979) 3 SCC 4: 1979 SCC (Cri) 609 as under:–
“21. In the decision in Stree Atyachar Virodhi Parishad v.
Dilip Nathumal Chordia [Stree Atyachar Virodhi Parishad v.
Dilip Nathumal Chordia, (1989) 1 SCC 715: 1989 SCC (Cri)
285], this Court held that the word “ground” in Section
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227 CrPC did not mean a ground for conviction, but a
ground for putting the accused on trial.
22. In P. Vijayan v. State of Kerala [P. Vijayan v. State of
Kerala, (2010) 2 SCC 398: (2010) 1 SCC (Cri) 1488], after
extracting Section 227 CrPC, this Court in paras 10 and 11
.
held thus: (SCC pp. 401-402)
“10. … 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.
Further, the words “not sufficient ground for
of
proceeding against the accused” clearly show that the
Judge is not a mere post office to frame the charge at
the behest of the prosecution, but has to exercise his
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judicial mind on the facts of the case in order to
determine whether a case for trial has been made out
by the prosecution. In assessing this fact, it is not
necessary for the court to enter into the pros and cons
of the matter or into a weighing and balancing of
evidence and probabilities, which is really the function
of the court, after the trial starts.
11. At the stage of Section 227, the Judge has merely to
sift the evidence in order to find out whether or not
there is sufficient ground for proceeding against the
accused. In other words, the sufficiency of ground
would take within its fold the nature of the evidence
recorded by the police or the documents produced
before the court which ex facie disclose that there are
suspicious circumstances against the accused so as to
frame a charge against him.”
23. In para 13 in P. Vijayan case [P. Vijayan v. State of
Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488], this
Court took note of the principles enunciated earlier by
this Court in Union of India v. Prafulla Kumar Samal [Union
of India v. Prafulla Kumar Samal, (1979) 3 SCC 4: 1979 SCC
(Cri) 609] which reads thus: (Prafulla Kumar Samal case
[Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4:
1979 SCC (Cri) 609], SCC p. 9, para 10)
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“10. … (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 a 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
of
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
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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 were
conducting a trial.”
16. In M.E. Shivalingamurthy v. Central Bureau of Investigation
Bengaluru, (2020) 2 SCC 768 : (2020) 1 SCC (Cri) 811, this Court
has held as under:–
“17. This is an area covered by a large body of case law. We
refer to a recent judgment which has referred to the
earlier decisions, viz. P. Vijayan v. State of Kerala and
discern the following principles:
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17.1. If two views are possible and one of them gives rise to
suspicion only as distinguished from grave suspicion, the
trial Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the
charge at the instance of the prosecution.
.
17.3. The Judge has merely to sift the evidence in order
to find out whether or not there is sufficient ground
for proceeding. Evidence would consist of the
statements recorded by the police or the documentsproduced before the Court.
17.4. If the evidence, which the Prosecutor proposes to
of
adduce to prove the guilt of the accused, even if fully
accepted before it is challenged in cross-examination
or rebutted by the defence evidence, if any, “cannot
show that the accused committed the offence, then,
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there will be no sufficient ground for proceeding with
the trial”.
17.5. It is open to the accused to explain away the
materials giving rise to the grave suspicion.
17.6. The court has to consider the broad probabilities,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, wouldnot entitle the court to make a roving inquiry into the
pros and cons.
17.7. At the time of framing of the charges, the
probative value of the material on record cannot be
gone into, and the material brought on record by theprosecution has to be accepted as true.
17.8. There must exist some materials for entertaining
the strong suspicion that can form the basis for
drawing up a charge and refusing to discharge the
accused.
18. The defence of the accused is not to be looked into at
the stage when the accused seeks to be discharged under
Section 227 CrPC (see State of J&K v. Sudershan Chakkar).
The expression, “the record of the case”, used in Section 227
CrPC, is to be understood as the documents and the articles, if
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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. At the stage of framing of
the charge, the submission of the accused is to be
confined to the material produced by the police (see State
.
of Orissa v. Debendra Nath Padhi).” (emphasis supplied)
17. Consequently, at the stage of discharge, a strong
suspicion suffices. However, a strong suspicion must be
found on some material which can be translated into
evidence at the stage of trial.
18. The present revision has to be decided as per the
of
parameters laid down by the Hon’ble Supreme Court.
19. The complainant asserted that the accused evaded the
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excise duty by sending the finished material to SGI, who sent the
material to the market after galvanisation without the payment of
excise duty by asserting that an act of galvanisation does not
attract excise duty. However, these facts were not prima facie
proved.
20. Nitin Wapa (CW1) stated that an excise duty and a
penalty of ₹ 12,00,00,000/- (twelve crore) was payable. He proved
the various orders passed by the various authorities under the
Excise Act. He admitted in his cross-examination that he had never
dealt with the present case.
21. Jodh Singh (CW2) stated in his cross-examination that
he had never handled the matter before making the statement on
oath, and his statement was based on the record inspected by him
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2026:HHC:26976
22. It is apparent from the cross-examination of Jodh Singh
(CW2) that he had no personal knowledge about the evasion of the
excise duty, and whatever he deposed, he had deposed based on the
.
record. The complainant failed to produce the record before the
Court, and the testimony of this witness regarding the information
derived from the record is inadmissible2.
23. Umesh Gupta (CW3) proved the show-cause notice
of
order passed by the authorities. He did not say anything about the
evasion. He also admitted in his cross-examination that he had
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handled the case after 26.08.2011, and no document was produced
in his presence. He had no personal knowledge regarding the facts
of the case. Again, his testimony does not prove the evasion of the
duty.
24. Ravi Burman (CW4) proved the document (Ext.CW3/D)
and has not stated anything about the evasion.
25. Kartar Singh (CW5) stated that a complaint was filed
regarding the non-payment of the duty and the penalty. He stated
in his cross-examination that he had not investigated the matter.
26. R.K. Goyal (CW6) stated that he had investigated the
matter. The case pertained to the evasion of excise duty by
different methods. The accused had not paid the excise duty of
2
Murarka Properties (P) Ltd. v. Beharilal Murarka, (1978) 1 SCC 109
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₹6,18,72,793/-. He had forwarded the report to the Assistant
Director. A show-cause notice was issued based on the
investigation conducted by him. He proved the show cause notice.
.
27. This witness investigated the matter, but did not say
anything about the evasion of the excise duty. He simply stated
that excise duty was evaded by various methods without specifying
the method. Therefore, his testimony does not establish the
of
evasion of the excise duty.
28.
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In M/s Rimjhim Ispat (supra), the Hon’ble Supreme
Court held that the proceedings cannot be set aside because the
order was set aside. In the present case, the complainant is relying
upon the orders passed by various authorities under the Central
Excise Act to prove the evasion, and the cited judgment does not
apply to the present case.
29. Therefore, the learned Trial Court had rightly held that
there was insufficient material to show the evasion of the duties,
and the criminal Court could not have convicted a person merely
because a show cause notice was issued and penalties were
imposed by various authorities. The Criminal Court had to apply its
independent mind to determine whether there was evasion and if it
was so, whether it constituted any criminal offence or not.
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Therefore, there is no infirmity in the order passed by the learned
Trial Court requiring any interference from this Court.
30. No other point was urged.
.
31. In view of the above, the present revision fails and is
dismissed.
32. The present revision stands disposed of, and so are the
of
pending miscellaneous application(s), if any.
33. The record of the learned Courts below be returned with
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a copy of the judgment.
(Rakesh Kainthla)
Judge
7th July, 2026
(Nikita)
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