IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5489 of 2010 Md.Masud Alam, son of Late Md. Ayub Ali, resident of village-Madheli, P.S.-Alamnagar, District-Madhepura. At present Headmaster, Middle School, Majora, P.S.-Bihariganj, District-Madhepura. …PETITIONER. Versus 1. The State of Bihar. 2. Anil Ram, Assistant Teacher Middle School, Majora, son of Jai Narayan Ram, resident of village-Majora, P.S.-Bihariganj, District- Madhepura. ….OPPOSITE PARTIES. For the petitioner : Mr. Shailendra Kumar Singh, Advocate Mr. Rajiv Ranjan, Advocate. For the State : Mr. Nirbhay Kumar Singh, A.P.P. For the O.P. No.2 : Mr. Praveen Kumar Agrawal, Advocate. 9 17/11/2011 Heard learned counsel for the petitioner as well as learned Additional P.P. In spite of having appearance of O.P. No.2 he failed to put his presence during course of argument. Instant petition has been filed for quashing of an order dated 28-01-2010 passed by the learned Special Judge, Madhepura, in Bihariganj P.S. Case No.109 of 2008, G.R. No. 1060 of 2008 whereby and where under a petition under Section 227 Cr.P.C. has been rejected. Anil Ram, a teacher of Majora Primary School filed written report on 10-08-2008 disclosing therein that his wife happens to be employed as Panchayat Teacher and had joined in the year 2005 at Primary School, Majora. He also joined on 23.03.2007. Headmaster of the aforesaid school began to torture them on account of being a person of weaker section. Subsequently, he was deputed at Primary School, Kumarpur by the order of Block Education officer. But he could not join as a result of which he was again directed to join at his parent school. Principal, Md. Masud Alam refused to accept his joining and further said that he does not want to see 2 the teachers belonging to “Chamar” caste. Further, demanded rupees ten thousand and a godrej almirah to permit him to join. Anyhow, he accepted his joining on 13.3.2008 but had deducted salary for the month of February and upto March 12th. Contention on behalf of the petitioner is that no offence under Section 386 of the I.P.C., 3(i)(x) of SC ST (P.A.) Act is made out from the written report itself in the background of the fact that no ingredients of Section 3(i)(x) of SC ST (P.A.) Act is made out on account of the fact that neither the place of occurrence has been shown much less at public place nor it was uttered in public view. So far 386 IPC is concerned, no force has been used nay any property has been handed over. Apart from this, it has also been submitted that no date of occurrence has been specified. It has further been submitted that the joining of petitioner was effected on 13.3.2008 but the case has been filed on 10.08.2008 that means to say after a gap of five months for which there happens to be no explanation. Then submitted that actually the informant himself happens to be at fault and he coerced the petitioner to release salary for the period during which he was not at all present in the school and as the petitioner failed to oblige, got this case filed. Also submitted that the learned lower court in mechanical manner passed the order impugned without judiciously scrutinizing the material available on the case diary. Hence, the order impugned appears to be bad in law. At the other hand the state has opposed the prayer and submitted that where there happens to be order of discharge, the same should be followed with reasoned order which the Section 227 Cr.P.C. itself requires contrary to it, no such requirement is found. Also submitted that from the 3 lower court record it is evident that the learned lower court had scrutinized the material on the record. So the order impugned is fit to be confirmed. Recently as reported 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 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. 4 Taking into account the order impugned inconsonance with the criteria so fixed by the Hon’ble Apex Court as referred above it is evident that the learned lower court failed to evaluate the materials and document available on the record to trace out whether the allegation on its face is coming out which happens to be point no.6 and in the aforesaid background the order impugned cannot sustained. Thus, the order impugned is set aside. Consequent thereupon petition is allowed. The mater is referred to the learned lower court to deal with the matter afresh in light of the principle enunciated by the Hon’ble Apex Court and will pass appropriate order. PN (Aditya Kumar Trivedi, J)