IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33273 of 2007 1. DWARIKA SHARMA, SON OF LATE NATHO SHARMA. 2. AJAY SHARMA @ AJAY KUMAR SHARMA, SON OF SATYDEO SHARMA @ DHAULU SHARMA. 3. PINTU SHARMA @ KARELAL SHARMA, SON OF SUDHIR SHARMA. ALL ARE RESIDENT OF VILLAGE-KAHUA, P.S. SANGRAMPUR, DISTRICT-MUNGER. ……………………………………………………………...PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. SHUBHA DEVI, WIFE OF SRI NIWAS SHARMA, VILLAGE- KAHUA, P.S. SANGRAMPUR, DISTRICT- MUNGER. ……………………………………………………OPPOSITE PARTIES. ----------- 4. 12.11.2008. Heard Mrs. Anjana Prakash, the learned Senior Counsel for the petitioners and Mr. Jharkhandi Upadhayay, the learned A.P.P. for the State. Although the informant was duly served with notice, she has chosen not to appear to contest this application. The petitioners through this application have prayed for the quashing of the order dated 5.6.2007 passed by Sri O.P. Sinha, the learned Presiding Judge, Fast Track Court No.V, Munger, in Sessions Case No.145 of 2007 , whereby the learned court has rejected the petition filed on behalf of the petitioners under Section 228 Cr.P.C. with a prayer to discharge them of allegation under Section 307 I.P.C. and to send back the case under Section 228(1)(a) Cr.P.C. to the court of the learned Chief Judicial Magistrate, Munger, for trying them for offences under Sections 341, 323, 452, 379/34 I.P.C. From perusal of the impugned order, it appears that the learned Presiding Judge, was of the view that at that stage from - 2 - perusal of the evidence of the witnesses it cannot be said that the offence under Section 307 I.P.C. is not made out and it can only be ascertained after taking evidence during course of trial. He, therefore, formed the opinion that charge under Section 307 I.P.C. is also made out against the accused persons. Section 227 Cr.P.C. relates to discharge and in exercising powers under Section 227 Cr.P.C. , the Judge while considering the question of framing the charges has 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. Where 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. Section 228 Cr.P.C. reads as follows: Framing of charge- (1) If, after such consideration and hearing as aforesaid, the judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-case instituted on a police report; - 3 - (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused………….. It is by now well settled that the framing of the charge is not a mere formality but judicial act to be performed by the Sessions Judge after applying his judicial mind to the consideration as to whether there is any ground for presuming that the accused had committed the offence . For the purpose as propounded in the case of State of Bihar Vs. Ramesh Singh (AIR 1977 SC 2018) Sections 227 and 228 Cr.P.C. have to be read in juxtaposition with each other and the standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Sections 227 and 228 Cr.P.C. At this stage even a very strong suspicion founded upon materials before the court which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence. Similar view has been expressed in the case of Superintendent & Remembrancer Vs. Anil Kumar Bhunja (AIR 1980 SC 52). In view of what has been held above, the observations of the learned court that “ so, at this stage from perusal of the evidences of the witnesses it cannot be said that the offence U/S 307 of the I.P.C. is not made out and it can only be ascertained after taking evidence during course of trial. So , at this stage , I am of the opinion that - 4 - charge U/S 307 of the I.P.C. is also made out against the accused persons” appears to be ill founded since he has to hold, as held in the case of Superintendent and Remembrancer (Supra) before framing of the charge that there is a prima facie case against the accused. It was observed in State of Karnatka Vs. L Muniswami (AIR 1977 SC 1489) that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused since framing of charge effects a person’s liberty substantially. Then again in Stree Atyachar Virodhi Parishad Vs. Dilip, reported in (1989) 1 SCC 715, it was said that the court has to see while considering the question of framing of charge whether the materials brought on record would reasonably connect the accused with the crime. This was quoted with the approval by the Apex Court in State of West Bengal Vs. Md. Khalid, reported in (1995)1 SCC 684. Due regard being had to the discussions made above, I am constrained to set aside the impugned order and remit the case back to the court below to give a categoric finding in terms of the observations made by the Hon’ble Apex Court as detailed above. The learned court below will hear the parties afresh and pass orders in the light of the observations made above. Accordingly, the application is allowed and the matter is remitted back to the court below for fresh decision. P.S. (Abhijit Sinha,J)