Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.945 of 2010 ====================================================== 1. Kumar Chauhan @ Raj Kumar Chauhan S/O Late Ramjee Chauhan R/O Vill.- Laxmi Bigha,P.S.-Chandi,Dist.- Nalanda. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Yogendra Chauhan S/O Late Lala Chauhan R/O Vill.- Laxmi Bigha,P.S.-Chandi,Dist.-Nalanda. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Anjani Kumar, Adv. For the Opposite Party/s : Mr. Ajay Kumar-1 APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 4 30-08-2012 Petitioner/accused Kumar Chauhan @ Raj Kumar Chauhan has challenged order dated 02.12.2009 passed by Additional Sessions Judge, IIIrd Hilsa, Nalanda, in Sessions Trial No. 603/09 whereby and whereunder the learned lower court had framed charge against the petitioner for an offence punishable under [STATUTE] . 2. Yogendra Chauhan (O.P. No.2) had recorded his Fardbeyan on 9.6.2009 alleging inter alia that in between night of 8/9.6.2009 while his brother Sharad Chauhan (Deceased) had gone to sleep at Ahari Khanda, he was done to death by unknown criminals by sharp cutting weapon which was disclosed to him by his nephew Santoshi Kumar aged about 6 years who in the morning of 9.6.2009 had gone to pick Mahua. Thereupon all the 2 family members including a large number of villagers came there and during said course he was informed by one person that Pappu Mahto of village, Manikpur had also sustained injury at the hands of miscreants while he was staying with his deceased brother. The aforesaid Pappu Mahto was taken away to Biharsharif. 3. On the basis of aforesaid Fardbeyan Chandi P.S. Case No. 120/2009 was registered under [STATUTE] against unknown and investigation was taken up during course of which the Investigating authority had also recorded statement of Pappu Mahto along with others and then submitted charge-sheet against the petitioner while investigation was kept open with regard to other co-accused. The learned Magistrate after going through the case diary took cognizance of the offence and then committed the case on account of offence having been exclusively triable by the court of sessions and from the order impugned, it is evident that the learned Judge after going through the case diary framed charge against the accused/petitioner which happens to be subject matter of challenge in this petition. 4. The sole ground raised on behalf of the petitioner is that while the investigation against other co-accused remained pending, the case was supervised by the Superintendent of Police who had directed the I.O. to submit charge-sheet against others 3 and so far petitioner is concerned, the I.O. was directed to pray before the court for cancellation of the charge-sheet which the I.O. had done and so, it has been submitted that now in light of aforesaid development no prosecution remains. 5. On the other hand, learned APP opposed the prayer and submitted that once cognizance is taken over the material collected by the I.O. during course of investigation and properly placed in accordance with law then in that event, the subsequent step contrary thereto taken by the I.O. is not going to oust the jurisdiction of the court and in likewise manner, the stage of the charge happens to be. 6. So far as present stage is concerned, the petitioner is aggrieved by the order impugned through which charge had already been framed against him on the basis of materials available in the case diary. At the stage of framing of charge the Hon’ble Apex Court in a celebrated judgment as reported in 2011 AIR SCW 3730 has framed criteria which are as follows. (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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 4 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. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses 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 suspici

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.