IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10534 of 2011 Kamla Kant Jha & Anr Versus The State Of Bihar ----------- 2/ 18/11/2011 Heard Mr. Anil Kumar, learned counsel for the petitioner and learned Additional P.P. for the State. Petitioner has challenged order dated 7.12.2010 passed in Sessions Trial No. 321/2003 by 7th Additional Sessions Judge, Eash Champaran, Motihari (State of Bihar v. Kamla Kant Jha & Anr) whereby and whereunder the prayer of the petitioner purported to be filed under Section 227 of the Cr.P.C. has been rejected. Submission on behalf of the petitioner is that during the course of investigation sufficient material had been collected by the I.O. which divulged that the deceased was done to death on an assault made by the unruly mob treating the deceased as a thief. Then thereafter, presence of the petitioner at the scene came therefore, they cannot be held responsible. Also submitted that no suspicion can be formed with regard to conduct of the petitioner what to talk of grave suspicion as the prosecution witnesses themselves shown presence of the petitioners after the occurrence. As such 2 petitioner cannot be held responsible for any kind of mischief leading to culpable homicide not amounting to murder hence, Section 304 will not apply. On the other hand, learned APP opposed the prayer and submitted that the present stage derecognizes roving scrutiny and weighing the materials like trial, because there happens to be different kind of scrutiny of material at different stage right from taking of cognizance, framing charge and conclusion of trial. So submitted that the prayer in its present form is not maintainable. In a decision reported in 2011 AIR SCW 3730 following criteria have been laid down by the Hon’ble Apex Court for the purpose of consideration of material at the time of framing of charge so far, sessions trials are concerned. For better appreciation, the criteria are being reproduced hereinbelow:- (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 3 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 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. Serial No.VI requires the court concerned to justify his opinion with a reason after evaluating materials on record. The order impugned clearly suggests that the learned lower court had not evaluated the matter during course of 4 consideration with the prayer of the petitioner. As such the order impugned is set aside. Consequent thereupon, petition is allowed. The matter is remitted to the learned lower court to proceed afresh in light of the guidelines laid down by the Hon’ble Apex Court as referred above. perwez (Aditya Kumar Trivedi,J.)