IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.44992 of 2010 Md. Idrish Ansari And Ors. Versus The State of Bihar ---------------------------------- 3 30.11.2011 Supplementary affidavit has been filed on behalf of the petitioners, taken on record. Heard learned counsel for the petitioners as well as learned A.P.P. Petitioners have challenged the order dated 23.09.2010 passed by Additional Sessions Judge, F.T.C. Ist, in Sessions Trial No.582 of 2009 (State Versus Md. Idrish Ansari And Ors.) whereby and where under prayer under Section 228(1)(a) of the Cr.P.C. has been refused. Contention on behalf of the petitioners is that the injury reports did not satisfy the ingredients attracting Section 307 of the I.P.C. To support the same Annexure-2 has been placed through supplementary affidavit. All the injury reports happens to be issued by PHC, Sursarai. At the other hand, the learned A.P.P. opposed and submitted that from the order impugned it is evident that some of the injured were examined at the P.M.C.H. and the petitioners concealing those injury reports, have made prayer for remitting the case to CJM under Section 228(1)(a) Cr.P.C. which is not at all legally tenable. Recently, the Hon’ble Apex Court has laid down certain criteria whereupon the courts have been directed to see and adjudicate while deciding the issue of framing of charge as reported in 2011 AIR 2 SCW 3730. 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 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. 3 From the order impugned it is evident that when an objection has been raised and privilege has been sought for attracting Section 228(1)(A) of the Cr.P.C. then in that event it was incumbent upon the learned lower court to decide the same with a reasoning that too based upon the materials available in the case diary followed with injury report. Not only this, the learned lower court has taken wrong notion of law observing that charge can be framed on the basis of presumption. Presumption is a judicious State of affair through which particular event has been directed to assume as permitted under law. So far present stage is concerned, presumption is not a condition precedent unless and until the law so prescribes. In the aforesaid facts and circumstances of the case, the order impugned is set aside. Consequent thereupon, petition is allowed. The matter is remitted back to the learned lower court to decide afresh in accordance with law keeping in hand the guidelines as prescribed by the Hon’ble Apex Court as incorporated hereinbefore. PN (Aditya Kumar Trivedi,J.)