IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.28707 of 2010 Ramanand Giri & Anr Versus The State Of Bihar & Anr ---------------------------------- 3 07.12.2011 Heard learned counsel for the petitioners as well as learned A.P.P. Petitioners have challenged order dated 06.05.2010 passed by Additional Sessions Judge, Fast Track Court-Vth, Samastipur by which charge under Section 323,341,307, 504,34 of the IPC has been framed against the petitioners in connection with Sessions Trial No.244 of 2010. Whatever been submitted on behalf of the petitioners coupled with the averments made under para-1 of the petition is that at the time of framing of charge, the learned lower court failed to consider the defence of the petitioner. To support the same it has been submitted that one of the petitioner, Ramanand Giri had already instituted Vidyapatinagar P.S. Case No.50 of 2009 against the informant of this case along with others and to make out the defence thereof, one of the accused of that very case, namely, Jitendra Prasad Singh stood as an informant and got this case Vidyapatinagar P.S. Case No.51 of 2009 filed after two days. Also submitted that there happens to be no injury report on the record to substantiate the claim of the informant. Also submitted that after completing investigation, (Annexure-4) charge sheet was submitted under Section 323,341, 504/34 of the IPC but differing there from, learned Chief Judicial Magistrate had taken cognizance under Section 307 of the IPC also. So the cumulative effect happens to be that the order impugned is neither supported with the factual aspect nor by legal cloak. 2 At the other hand, the learned Additional A.P.P. opposed and submitted that grave suspicion is sufficient to frame charge. The defence of the petitioners /accused is to be taken into consideration at an appropriate stage of the trial. So far consideration of defence case is concerned, at the pre trial stage the same appears to be out of consideration unless and until the same is placed by un-rebutted document and for that reference may have 2011 AIR SC 1090. In 2011 AIR SCW 3730 the scope of Section 227 and 228 of the Cr.P.C. has been dealt with and the following criterias have been fixed by the Hon’ble Apex Court as is evident from para-17. (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 3 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. Now coming to the factual aspect, there happens to be version and counter version for an occurrence committed on 03-06-2009. In that event presence of case instituted at the behest of petitioner cannot be accepted as un-rebutted document and so, is out of consideration for the present purpose. Though I do not want to detail the event at this moment as may cause prejudice to the interest of rival party save and except bringing to the notice that for the purpose of attracting Section 307 of the IPC, injury is not a sine qua non. The submission so advanced on behalf of the petitioner coupled with the materials available on the record did not justify the submission raised by the petitioner whereupon applicability of Section 307 of the IPC could be negated. Consequent thereupon, the instant petition is found to be devoid of merit and is accordingly rejected. However, the petitioner will be at liberty to raise their defence during course of trial. PN (Aditya Kumar Trivedi, J.)