IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30686 of 2010 Rameshwar Singh, son of Late Gangai Singh, resident of Village-Kasma, P.S. Khajauli, District-Madhubani. ……Petitioner. Versus State of Bihar …Opposite Party. ----------- 3. 09.11.2011 Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor for the State. Being aggrieved by and dis-satisfied with the order dated 05.07.2010, passed by Sri Bishundev Rai, Chief Judicial Magistrate, Madhubani in connection with TR. Case No. 412/2010, arising out of Madhubani Town P.S. Case No. 105/81 whereby and whereunder the prayer of the petitioner has been refused to the extent of discharging him invoking Section 239 of the Cr. P.C., instant petition has been filed with a prayer for quashing of the same. Without adverting to the merit of the case, after hearing the rival contention raised on behalf of learned counsel for the petitioner as well as learned Additional Public Prosecutor, the order impugned is found to be liable to be set aside and petting it 2 remanded to the learned Lower Court to proceed afresh after taking into account the principle enunciated by the Hon’ble Apex Court in the case of Vishwa Kumar Sharma V. State of Rajasthan & Anr. since reported in 2096 Cr. L. J. 2096, the relevant Paragraph-16 is quoted hereunder:- “16. Thus, there are differences between “taking of cognizance” and framing of charge”. Of course, both the acts require the application of judicious mind. However, the former is done without hearing both the parties. Cognizance is taken without the accused being heard. The latter is done after hearing both the parties. In the former, the Judge examines the evidence to see if an offence has been committed. In the latter, the Judge examines the commission of the alleged crime by the accused. In the former, mere „suspicion about the commission of an offence‟ is enough for taking of the cognizance. In the latter, “ grave suspicion about the commission of the crime by the accused” should exist before a charge can be framed. In the former, the Judge is not supposed to sift through the evidence. In the latter, a 3 limited sifting of the evidence is permissible. Therefore, when the phrase “prima facie evidence” is used, it is used for two different sets of examinations at two different stages of the criminal process. One has to realize that the trial progresses through different stages. Hence, appreciation of evidence has to be of different quality. While at the stage of cognizance it is mere „suspicion‟, at the stage of framing of charge it is „grave suspicion‟, and at the end of trial, it is „a critical analysis and a meticulous examination of the entire evidence produced by the Prosecution and the accused. Therefore, the appreciation of evidence at the stage of framing of charges is at micro level; at the end of the trial it is at macro level. Hence, the mental level of appreciation changes at every stage of the criminal process: from a cursory appreciation to a critical one.” Which the order impugned is lacking. It will be opened to the petitioner to raise his plea before the learned Lower Court that his case does not cover even within the category of grave suspicion. Consequent thereupon, the petition is 4 allowed. Kamlesh (Aditya Kumar Trivedi, J.)