IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20462 of 2011 Bhola Rai Versus The State Of Bihar & Anr. ----------- 2 17.11.2011 Heard learned counsel for the petitioner as well as learned A.P.P. Petitioner has challenged the order dated 11.5.2011 passed by First Additional Sessions Judge-cum-Special Judge, Vaishali at Hajipur in Sessions Trial No.387 of 2007 whereby and where under prayer of the petitioner purported to be under Section 227 of the Cr.P.C. has been rejected. Contention on behalf of petitioner is that neither the informant happens to be at eye witness to occurrence nor none of the witness who was examined under Section 161 of the Cr.P.C. named the petitioner Then submitted that from the written report it is evident that name of petitioner including others came on the ground that informant was given information by his co-villager Jadunandan Rai and Dular Rai, to the effect that they have seen the accused having 2 apprehended the deceased Tarun Rai, his brother. Anneuxre-2 has been filed which contains para-57 statement of Dular Rai and para 48, statement of Jadunandan Rai wherein the aforesaid piece of disclosure has not been corroborated. Then referred Annexure-3 order dated 4.2.2010 passed in Cr. Misc. No.24334 of 2007 wherein, while dismissing the petition against the order of cognizance, it has been held “in the opinion of this Court, cognizance is taken for an offence and the précise allocation for individual allegation can only be done at the stage of framing of charge. That is how, the provision under Sections 227 and 228 of the Code of Criminal Procedure has been interpreted by the Apex Court and this Court”. So submitted that it is a fit stage for application of observation made at an earlier count by this Court consequent thereupon the order impugned is set to be set aside. The learned counsel for the State opposed the prayer and submitted that for the present grave suspicion is sufficient to attract framing of charge and for that, the 3 written report itself discloses indulgence of petitioner along with other. At the present stage, meticulous examination of the material is forbidden. In a decision reported in 2011 AIR SCW 3730, the following criteria has been identified for dealing with the stage covering under Section 227 and 228 of the Cr.P.C. (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 convic tion, 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. 4 (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. After going through the order impugned, it is evident that the learned Sessions Judge has failed to appreciate and evaluate the evidence on record to trace out a prima facie case against the petitioner, rather the order impugned appears to be assessed in mechanical way. Therefore, the order impugned is set aside. Consequent thereupon, prayer is allowed. The matter is remitted back to the learned lower court to appreciate the matter afresh in light of the guide lines prescribed by the Hon’ble Apex Court as enumerated herein above. PN (Aditya Kumar Trivedi, J.)