IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.20011 of 2011 Akhilesh Dubey Versus The State Of Bihar & Anr ---------------------------------- For petitioner:- Sri Ravi Shankar Sahay, Advocate Sri Ajay Nandan Sahay, Advocate For State:- Mr. Sunil Kumar Pandey, APP -------------------- 3/ 09/12/2011 Supplementary affidavit on behalf of petitioner has been filed and taken on record. Heard learned counsel for the petitioner and learned Additional P.P. for the State. Simple prayer has been raised on behalf of the petitioners that in spite of having total absence of material on the record to suggest that whatever criminal acts have been alleged against the petitioner that was with an intention or knowledge to have murderous attack upon the informant-victim. Also submitted that the injuries whatever been found over the person of victim informant happens to be categorized as simple in nature as such submission is that the order impugned is fit to be set aside. Learned APP fairly concedes. The victim and the accused who are full brothers indulged in affray wherein there happens to be an allegation of assault made by the petitioner upon the person of informant by means of fist and slap only. Assault by fist and slap cannot be accepted as a step forwarded for causing or attempting upon life 2 of informant. On this score, the guidelines so formulated by the Hon’ble Apex Court reported in AIR 2011 SCW 3730 to be taken into consideration which goes in the following manner:- (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 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 3 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 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. Apart from this, order impugned does not speak with regard to any coherent material to justify rejection of the prayer. As such, the same is set aside. Petition is allowed. The matter is remitted to the learned lower court to consider afresh the prayer of the petitioner and will dispose it of in accordance with law. Let a copy of this order be communicated to the court concerned by FAX at the cost of the petitioner. perwez (Aditya Kumar Trivedi,J.)