IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.38829 of 2010 Ashwini Kumar @ Banti Versus State Of Bihar & Anr ---------------------------------- 02. 15.12.2011. Heard learned counsel for the petitioner as well as learned A.P.P. for the State and also gone through the order impugned. Without putting any remark, I would like to refer few lines which the order of the learned lower court itself contains; “the learned A.P.P. further submitted that the statement of the victim girl more particularly taken in para-59 has disclosed the love affairs in between the petitioner and the victim girl. She has disclosed that how they have made plan to flee away with all the ornaments. In this way, it has been submitted that there is sufficient cogent evidence to proceed further against the petitioner. Therefore urged to reject the discharge petition. So far operative part of order is concerned, there is no disclosure whether the learned lower court took pains to go through para-59 of the case diary. Kidnapping is not defined under Penal Law save and except having its reference under Section 359 of the IPC and to some extent covers the acts by which a male aged below 16 years and a female below 18 years or any person of unsound mind having under the custody of the lawful guardian is being removed without the consent of guardian. Admittedly, girl happens to be major. Married or unmarried is irrelevant for the present purpose. Therefore, unless and until there happens to be positive material that girl was taken away by the accused against her will, no prosecution under Section 366 of the 2 IPC will be permissible though may be prosecuted under different Sections of the Penal Code in the background of having the victim married girl and moreover her marriage is still surviving. In a recent decision reported in 2011 AIR SCW page 3730, the following criteria have been identified by the Hon’ble Apex Court so far present stage is concerned:- (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 3 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 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. The facts of the case in hand if is taken together with the criteria so fixed by the Hon’ble Apex Court, it appears that at least the prayer under Section 227 of the Cr.P.C. raised on behalf of petitioner may be found non tenable in the eye of law but so far as application of under Section 228(1)(a)of the Cr.P.C. is concerned, certainly that has. Thus, the order impugned is set aside. Petition is allowed. The matter is remitted back to the learned lower court to proceed afresh after taking into account the principles so formulated by the Hon’ble Apex Court as reported above. Brajesh Kumar/- (Aditya Kumar Trivedi,J.)