IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1420 of 2007 THE STATE OF BIHAR Versus 1. MD.JABIR SON OF JAKIR @ NAKKO 2. MD. WALI @ LANGRA SON OF MD. JAKIR 3. MD. NAUSHAD SON OF MD. MUNISH 4. MD. BALLI SON OF MD. MUNISH 5. MD. SADULLA @ PAPPU SON OF MD. MUSKIM 6. MD. JAHANGIR SON OF MD. HASIM 7. MD. MAHBOOB SON OF MD. HASIM @ KAYUM 8. MD. ELHAM SON OF MD. SEKHABAT 9. MD. ACHHLO @ MD. ASLO SON OF KAFIL. ALL R/O- BANAUDHA, P.S.- MUFASIL, DISTRICT- MUNGER. For the petitioner : Mr. Satyanarayan Prasad, APP For the O.Ps : Mr. Ram Balak Mahto, Sr. Advoate Mr. Irshad Ahmad Khan, Advocate. ----------- 4 03.09.2010 I.A. no. 1883 of 2007 This is an application filed under Section 5 of the Limitation Act seeking condonation of delay in filing the present revision application. The limitation expired on 21.8.2007 whereas the present application was lodged w.e.f. 3.11.2007. For the reasons disclosed in the application and the submissions made in support thereof, the interlocutory application (I.A. no. 1883 of 2007) is allowed. Delay is condoned. Heard The prosecutor State is the petitioner. Order impugned is dated 23.5.2007 passed in Sessions Case No. 140 of 2007 by learned Addl. Sessions Judge, F.T.C.-III Munger (State versus Md. Elham & Ors). By the said order, learned trial Court has considered the materials on record and has come to the 2 conclusion that there is/are no sufficient materials on record justifying framing of charge under Sections 25 (1-A),, 25 (1-AA), 25(1-B) and 26((i), (ii), (iii)/35 of Arms Act and accordingly the accuseds (O.P. nos. 1 to 9 herein) have been acquitted of the charge and discharged from the liabilities of bail bonds. An F.I.R. was lodged by the Officer-in-charge being Mufassil P.S. case no. 168 of 2005 under diverse sections of Indian Penal Code alleging therein that on 3.8.2005 at about 2.15 p.m. while he was involved in a raid along with other police personnel and armed forces, he got a secret information that a Mini Gun factory was operated by the accused persons in the house of one Md. Jabir and in the adjoining bamboo clumps (Basbitti). The informant on receiving such information made a raid in the house of Md. Jabir. The villagers alarmed them whereafter accused persons who had assembled there started to flee away. A chase was offered but the police party was not able to identify and apprehend the accused persons. Subsequently, a search was carried out and certain seizures were effected from the house of Md. Jabir. It is the prosecution case that certain apparatus used in manufacturing of guns were recovered. No body, however, was found either in the house or in the adjoining Basbitti. Investigation was carried out whereafter charge-sheet was submitted which gave rise to the order taking cognizance. Subsequently, the case was committed to the Court of Sessions. At the stage of framing of charge, an application under Section 3 227 of Cr.P.C (Annexure-2) was filed seeking discharge on the following grounds: “ (1) That case is U/S 25(1-A) 25(1-AA)/25 (1- B)AC/26(i) (ii) (iii) 35 Arms Act. (2) That the petitioner not caught on the spot. (3) That the petitioner has been falsely implicated in this false case by the Police. (4) That no any arms and tools were recover from the possession of the petitioner or from the house of the petitioner. (5) That there is no any legal evidence in the whole case diary against the petitioner. (6) That there is no any public seizure list witness of village Banaudha. Only P.W. is Police party. A.S.T. Suresh Pd. Singh and Jogender Pd. Gupta. Home Guard no. 2966.” Learned Trial Court considered the said application and came to the conclusion that the prosecution case suffers from the following defects:- (i) One of the accuseds namely Md. Wali was physically handicap and as such it was not possible for him to involve in the offence and on being accosted to run away from the place of occurrence. (ii) The seizure was effected in presence of only the police personnel. There was no independent witness. (iii) The I.O. prepared the police report in a perfunctory manner and the conduct of the I.O. appears to be doubtful. (iv) The seizure seems to have not been made in accordance with Section 100 4 Cr.P.C. Learned Trial Court thus passed the impugned order discharging them from the liabilities of bail bonds. I have heard learned counsel for the State and learned Senior Counsel appearing on behalf of the opposite parties. Learned counsel for the petitioner-State submits that perusal of the order would indicate that learned court below is writing a judgment of acquittal. It is submitted that there is/are sufficient material in the case diary at least to frame charge, yet the learned trial court critically and meticulously evaluated/appraised the materials on record and recorded a finding that the prosecution case suffers from in built contradictions inasmuch as the seizure of the alleged articles were not made in accordance with Section 100 Cr.P.C. It is the contention of the petitioner that learned court below exceeded its jurisdiction in passing the aforesaid order. Learned counsel appearing on behalf of the opposite parties, on the other hand, submits that in view of the findings recorded by the learned court below, no conviction can be recorded against the opposite parties. It is stated that learned Trial Court has only referred to the salient features of the case appearing from the record and thereby has come to a conclusion that framing of charge will be a gross miscarriage of justice and thus passed the impugned order. I have considered the submissions advanced on behalf of the parties and perused the materials on record 5 including the impugned order. The scope of jurisdiction to be invoked at the stage of framing or discharging of an accused as provided under Sections 227 and 228 have fallen for consideration on a numerous occasions before the Supreme Court. It has been held that at the stage of framing of charge, the court below has to only satisfy from the materials on record as to whether there is/are sufficient materials available on record to proceed with the trial by framing of charge. Meticulous evaluation of the witnesses and the materials on record at the stage of framing of charge has to be avoided as it will amount to a trial before trial. Learned court below has found that there was no independent witness to the seizure. The prosecution possibly might have shown during trial that the house and the adjoining Basbitti were located in a secluded place and there was no independent witness available. Learned trial court has also found that the seizure had been effected in gross breach of the provisions of Section 100 of the Cr.P.C.. Such conclusion has to be arrived at only after allowing the parties to adduce evidence and only thereafter learned trial court could have found and held that there was in fact breach of the statutory provisions as contained in Section 100 of Cr.P.C.. It is further seen from the impugned order that learned court below has deprecated the Investigating Officer of the case in conducting the investigation in superfluous manner. This finding and/or observation could have been arrived at after allowing them to lead evidence in support of 6 their respective cases, Scope of the jurisdiction invoked by the learned court below under Section 227 of Cr.P.C. has been considered in the following cases by the Apex Court. (i) A.I.R. S.C. 2018 State of Bihar versus Ramesh Singh. (ii) 2001 (4) S.C.C. 333 (Om Wati versus State). It is seen therefore that the trial court shall be justified in framing charge even in a case where exists a grave suspicion and/or where there are sufficient material(s) on record justifying framing of charge. On a perusal of the materials on record and after hearing both the parties, this Court is satisfied that learned trial court in passing the order impugned, has exceeded its jurisdiction and thereby fell in error which vitiates the order. Let it be recorded that the above observations of mine have been made only for the purpose of considering the rival submissions made on behalf of the parties. They are confined to the consideration and disposal of the present case. Consequently the order impugned dated 23.5.2007 is set aside. The matter is remanded back to the learned Trial Court for a fresh consideration and disposal. pkj ( Kishore K. Mandal, J. )