IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.26702 of 2011 Manoj Kumar Singh & Anr. Versus The State Of Bihar ----------- For petitioners:- Mr. Vaidehi Raman Pd. Singh, Adv. For the State :- Mr. Jharkhandi Upadhyaya, APP 2/ 03/11/2011 Heard learned counsel for the petitioners as well as learned Additional P.P. for the State. Petitioners have challenged the order dated 30.06.2011 passed by 1st Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 255/2010 whereby and whereunder prayer of the petitioner to discharge as per Section 227 of the Cr.P.C. has been rejected. It has been contended on behalf of the petitioner that there are so many lacuna existing on the face of the prosecution and to support the same, submitted that from the narration of the complaint petition, which has subsequently been treated as FIR, there is disclosure that dead body had already been cremated. So no cause of death is available on the record. Also submitted that there happens to be delay in launching the prosecution without any explanation. Also submitted that during the course of investigation though some of the witnesses have supported the prosecution case but others have divulged that the deceased had died on account of heart attack and so submitted that in the 2 aforesaid background the prosecution of the petitioners appears to be wholly unjustified. Learned APP opposes the prayer and submitted that from the order impugned itself, it is evident that the learned lower court had taken note of the discrepancy visible in the statement of the witnesses while rejecting the prayer of the petitioner. So far as tenability of prayer made under Section 227 of the Cr.P.C. is concerned, it has been held that grave suspicion is sufficient for the purpose of framing of charge. In a decision reported in 2006 Cr.L.J. 2096, it has been held as follows:- “16. Thus, there are differences between “taking of cognizance” and “framing of the charge”. Of course, both the acts require the application of judicious mind. However, the former is done without hearing both the parties. Cognizance is taken without the accused being heard. The latter is done after hearing both the parties. In the former, the Judge examines the evidence to see if any offence has been committed. In the latter the Judge examines the commission of the alleged crime by the accused. In the former, mere „suspicion about the commission of the an offence‟ is enough for taking of the cognizance. In the latter, “grave suspicion about the commission of the crime by the accused” should exist before a charge can be framed. In the former, the Judge is not supposed to sift through the evidence. In the latter, a limited sifting of the evidence is permissible. Therefore, when the phrase “prima facie evidence ” is used, it is used for two different sets of examinations at two different stages of the criminal process. One has to realize that the trial progresses through different stages. Hence, appreciation of evidence has to be of different 3 quality, While at the stage of cognizance it is mere „suspicion‟, at the stage of framing of charge it is „grave suspicion‟, and at the end of trial, it is a critical analysis and a meticulous examination of the entire evidence produced by the prosecution and the accused‟. Therefore, the appreciation of evidence at the stage of framing of charges is at micro level; at the end of the trial it is at macro level. Hence, the mental level of appreciation changes at every stage of the criminal process: from a cursory appreciation to a critical one.” So far in consistency or other points so raised on behalf of the petitioners are concerned, those matters relate with the trial. At this juncture it would be better to cite the law so formulated by the Hon’ble Apex Court as reported in 2011 AIR SCW 3730 which is as follows:- “ On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227, 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 4 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 weight 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 and documents on record with a view to find out if the facts emerging therefrom taken at their fact value disclose 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.” 5 For the present, I do concur with the finding of the learned lower court that the materials are found to be sufficient to infer grave suspicion against the accused/petitioner by more particularly taking into account para-4, 45, and 47 of the case diary as is evident from the order of the learned lower court. As such, prayer of the petitioner at the present stage is found to be misconceived and is accordingly, rejected. However, petitioners will be at liberty to raise all the points whatever been at the appropriate stage of the trial. perwez (Aditya Kumar Trivedi,J.)