# Kamlendra Bahadur & Ors v. State of U.P. & Anr

- **Citation:** (2021) 8 ILRA 617
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-08
- **Case number:** Application U/S 482. No. 6701 of 2021
- **Bench:** Dr. Yogedra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlendra-bahadur-ors-v-state-of-u-p-anr-47282
- **Pages:** 19

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal
Code,
1860-Sections
498-A,
323,342, 504, 506, & SC/ST Act, 1989section 3(2) (v-a)-quashing of-plea taken
by the applicants that they be denied
opportunity
to
move
a
discharge
application-applicants
duly
appeared
before the court and order was passed for
framing of charges-trial judge recorded a
prima facie satisfaction with regard to the
material being sufficient for the purpose
of framing of charge after perusing the
case diary, FIR and evidence collectedorder read and explained to the accused
by fixing date for evidence and issued
summons to the witnesses-order-sheet of
the case indicates several dates have been
fixed and applications seeking exemptions
for appearance several times also-plea
taken by the applicants that their valuable
right to plead discharge has been taken
away, seems as an afterthought.(Para 1 to
34)

B. The ambit and scope of exercise of
power under Secitons 227 and 228 of the
code, are fairly well settled. the test to be
618 INDIAN LAW REPORTS ALLAHABAD SERIES
applied at this stage would be whether
there is sufficient ground for proceeding
and not whether there is sufficient ground
for conviction. if the judge comes to a
conclusion that there is sufficient ground
to proceed, he will frame a charge, if not,
he will discharge the accused.(Para 21)

The petition is dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,917 of 63,233. This is a partial read: ask again with offset=39917 for what follows._

8 All. Kamlendra Bahadur & Ors. Vs. State of U.P. & Anr.
617
Procedure, 1973, the evidence of the
complainant may be given by him on
affidavit and may, subject to all just
exceptions be read in evidence in any
inquiry, trial or other proceedings under
the said Act. However, the court has power
in certain circumstances to examine the
person giving evidence on affidavit either
on the application of the prosecution or the
accused and this provision is contained in
sub-section (2) of section 145 of the Act,
the Magistrate was not legally required to
examine the complainant and his witnesses
as provided in Section 200 of the Criminal
of PC. The expression "inquiry" and "other
proceeding" used in section 145(1) of the
Act very well includes the proceedings of
the complaint held at the pre-summoning
stage, therefore, the affidavit could be filed
and relied upon by the Magistrate in
passing the summoning order."

7. In case of Sachin Agarwal vs. State
of U.P.; (2011) 75 ACC 482, it has been
held that "the Magistrate was required to
observe
the
provisions
contained
in
sections 200 and 202 Cr.P.C. does not
appear to have any substance especially
when section 145(1) of the Negotiable
Instruments Act contemplates taking of the
complainant evidence on affidavit not only
in the trial but also in any inquiry or other
proceeding. The term inquiry and also the
term other proceedings very well includes
the proceedings held by the Magistrate
before summoning the accused."

8. In view of aforesaid legal position,
it is evident that the plea taken by the
applicant's counsel that since Magistrate
has not observed that provisions contained
in Sections 200 and 202 Cr.P.C., have not
been followed, then applicant is entitled to
quashing, is not made out, therefore,
petition fails and is dismissed.
----------
(2021)08ILR A617
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2021

BEFORE

THE HON'BLE DR. YOGEDRA KUMAR
SRIVASTAVA, J.

Application U/S 482. No. 6701 of 2021

Kamlendra Bahadur & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ronak Chaturvedi

Counsel for the Opposite Parties:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal
Code,
1860-Sections
498-A,
323,342, 504, 506, & SC/ST Act, 1989section 3(2) (v-a)-quashing of-plea taken
by the applicants that they be denied
opportunity
to
move
a
discharge
application-applicants
duly
appeared
before the court and order was passed for
framing of charges-trial judge recorded a
prima facie satisfaction with regard to the
material being sufficient for the purpose
of framing of charge after perusing the
case diary, FIR and evidence collectedorder read and explained to the accused
by fixing date for evidence and issued
summons to the witnesses-order-sheet of
the case indicates several dates have been
fixed and applications seeking exemptions
for appearance several times also-plea
taken by the applicants that their valuable
right to plead discharge has been taken
away, seems as an afterthought.(Para 1 to
34)

B. The ambit and scope of exercise of
power under Secitons 227 and 228 of the
code, are fairly well settled. the test to be
618 INDIAN LAW REPORTS ALLAHABAD SERIES
applied at this stage would be whether
there is sufficient ground for proceeding
and not whether there is sufficient ground
for conviction. if the judge comes to a
conclusion that there is sufficient ground
to proceed, he will frame a charge, if not,
he will discharge the accused.(Para 21)

The petition is dismissed. (E-5)

List of Cases cited:

1. Sanjay Kumar Rai Vs St. of U.P. & anr. (2021)
SCC Online SC 367

2. Satish Chandra Ratan Lal Shah Vs St. of Guj.
& anr. (2019) 9 SCC 148

3. St. of Bih. Vs Ramesh Singh(1977) 4 SCC 39

4. UOI Vs Prafulla Kumar Samal & anr. (1979) 3
SCC 4

5. Niranjan Singh Karam Singh Punjabi Vs
Jitendra Bhimraj Bijjaya & ors. (1990) 4 SCC 76

6. Soma Chakravarty Vs St.thru CBI(2007) 5SCC
403

7. P. Vijayan Vs St. of Ker. & anr. (2010) 2 SCC
398

8. Sajjan Kumar Vs C.B.I. (2010) 9 SCC 368

9. Amit Kapoor Vs Ramesh Chander & anr.
(2012) 9 SCC 460

10. St. of T.N. Vs N. Suresh Rajan & ors. (2014)
11 SCC 709

11. Omkar Nath Mishra Vs St. of U.P.(2008) 2
SCC 561

12. Sheoraj Singh Alld Vs St. of U.P.(2013) 11
SCC 476

13. St. Vs S. Selvi & anr.(2018) 13 SCC 455

14. Asim Shariff Vs NIA (2019) 7 SCC 148

15. Vikram Johar Vs St. of U.P.(2019) 14 SCC 207

16. M.E Shivalingamurthy Vs CBI,Bengaluru
(2020) 2 SCC 768

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Ronak Chaturvedi,
learned counsel for the applicants and Sri
Pankaj
Saxena,
learned
Additional
Government Advocate-I appearing for the
State-opposite party.

2. The present application under
Section 482 Cr.P.C. has been filed seeking
to quash the proceedings of Special Session
Trial No. 75 of 2019 (State Vs. Kamlendra
Bahadur Mishra and others) arising out of
Case Crime No. 62 of 2019, under Sections
323, 342, 504, 506 I.P.C. read with 3 (2)
(v-a) of S.C./S.T. Act, Police Station
Bijpur, District Sonbhadra pending in the
court of Special Judge S.C./S.T. Act,
Sonbhadra and also the order dated
20.02.2020 framing charges.

3. The only ground which has been
sought to be canvassed to challenge the
order dated 20.02.2020 and also the
proceedings is that the learned Special
Judge before proceeding to frame charges
against the applicants did not provide
opportunity
to
move
a
discharge
application and accordingly the applicants
have been denied their valuable right to
claim discharge granted to an accused
under Section 227 of the Code of Criminal
Procedure.

4. Counsel for the applicants has
contended that the court below has
proceeded
to
frame
charges
without
permitting the applicants to move a
discharge application and the applicants
having thus been denied their valuable right
8 All. Kamlendra Bahadur & Ors. Vs. State of U.P. & Anr.
619
to plead discharge have been seriously
prejudiced.

5. Reliance has been placed upon the
judgments in Sanjay Kumar Rai Vs. State
of Uttar Pradesh and another1 and
Satish Chandra Ratan Lal Shah Vs.
State of Gujarat and another2 for the
proposition that discharge is a valuable
right provided to an accused.

6. Per contra, learned A.G.A.
appearing for the State opposite party has
drawn attention of the Court to the fact that
prior to passing of the order dated
20.02.2020, framing charges, the applicants
were put to notice by the previous order
dated 03.01.2020 in terms of which the
subsequent date i.e. 20.02.2020 was fixed
for framing of charges. It has also been
pointed out that the applicants had
approached this Court in proceedings under
Section 482 Cr.P.C. (Application U/S 482
No. 42060 of 2019) and also filed a writ
petition (Criminal Misc. Writ Petition No.
17716 of 2019) seeking quashing of the
first information report dated 12.06.2019
lodged against them. It is submitted that the
necessary
documents
were
therefore
available with the accused applicants
during the earlier proceedings and also the
present proceedings which is evident from
the documents which have been appended
along with the affidavit in support of the
present application. It is contended that in
addition the applicants were granted
sufficient time by the court below by fixing
20.2.2020 as the date for framing of
charges and in the event the applicants
desired, they could have moved an
appropriate discharge application in the
interregnum.
It
is
pointed
out
that
subsequent to framing of charges on
20.02.2020, several dates have been fixed
and the trial is at the stage of evidence and
as such the claim sought to be raised by the
accused applicants with regard to discharge
cannot be entertained at this stage.

7. In order to appreciate rival
contentions,
the
relevant
statutory
provisions may be adverted to.

8. The procedure for trial before a
court of session is provided under Chapter
XVIII of the Cr.P.C. and Sections 227 and
228 which relate to discharge and framing
of charges are extracted below.

"227.
Discharge.--
If,
upon
consideration of the record of the case and
the documents submitted therewith, and
after hearing the submissions of the
accused and the prosecution in this behalf,
the Judge considers that there is not
sufficient ground for proceeding against the
accused, he shall discharge the accused and
record his reasons for so doing.

228. Framing of charge.--(1) If,
after such consideration and hearing as
aforesaid, the Judge is of opinion that there
is ground for presuming that the accused
has committed an offence which-

(a) is not exclusively triable by
the Court of Session, he may, frame a
charge against the accused and, by order,
transfer the case for trial to the Chief
Judicial Magistrate, [or any other Judicial
Magistrate of the first

class and direct the accused to
appear before the Chief Judicial Magistrate,
or, as the case may be, the Judicial

Magistrate of the first class, on
such date as he deems fit,and thereupon
such Magistrate] shall try the offence in
accordance with the procedure for the trial
620 INDIAN LAW REPORTS ALLAHABAD SERIES
of warrant-cases instituted on a police
report;

(b) is exclusively triable by the
Court, he shall frame in writing a charge
against the accused.

(2) Where the Judge frames any
charge under clause (b)of sub-section
(1),the charge shall be read and explained
to the accused and the accused shall be
asked whether he pleads guilty of the
offence charged or claims to be tried."

9. The tests and considerations to be
applied by the Court while exercising the
powers under Sections 227 and 228 of the
Code, fell for consideration in the case of
State of Bihar vs. Ramesh Singh3, and it
was held that the standard of test and
judgement which is to be finally applied
before recording a finding regarding the
guilt or otherwise of the accused is not
exactly to be applied at the stage of
deciding the matter under Section 227 or
228, and at that stage, the Court is not to
see whether there is sufficient ground for
conviction of the accused or whether the
trial is sure to end in his conviction. While
considering the tests to be applied by the
Court for the purposes of discharge, it was
held that reading Sections 227 and 228
together in juxtaposition, it would be clear
that at the initial stage of the trial, the truth,
veracity and effect of evidence, which the
prosecutor proposes to adduce are not to be
meticulously judged and the standard of
test and judgement which is to be finally
applied
before
recording
a
finding
regarding guilt or otherwise of the accused
is not required to be applied at this stage;
the test would be whether there is sufficient
ground for proceeding and/or whether there
is sufficient ground for conviction. It was
stated thus :-

"4. Under section 226 of the Code
while opening the case for the prosecution
the Prosecutor has got to describe the
charge against the accused and state by
what evidence he proposes to prove the
guilt of the accused. Thereafter comes at
the initial stage the duty of the Court to
consider the record of the case and the
documents submitted therewith and to hear
the submissions of the accused and the
prosecution in that behalf. The Judge has to
pass thereafter an order either under
Section 227 or Section 228 of the Code. If
"the Judge consider that there is no
sufficient ground for proceeding against the
accused, he shall discharge the accused and
record his reasons for so doing", as
enjoined by Section 227. If, on the other
hand, "the Judge is of opinion that there is
ground for presuming. that the accused has
committed an offence which-

. . . . . . . . (b) is exclusively
triable by the Court, he shall frame in
writing a charge against the accused'', as
provided in Section 228. Reading the two
provisions together in juxtaposition, as they
have got to be, it would be clear that at the
beginning and the initial stage of the trial
the truth, veracity and effect of the
evidence which the Prosecutor proposes to
adduce are not to be meticulously judged.
Nor is any weight to be attached to the
probable defence of the accused. It is not
obligatory for the Judge at that stage of the
trial to consider in any detail and weigh in a
sensitive balance whether the facts, if
proved, would be incompatible with the
innocence of the accused or not. The
standard of test and judgment which is to
be finally applied before recording a
finding regarding the guilt or otherwise of
the accused is not exactly to be applied at
the stage of deciding the matter under
Section 227 or Section 228 of the Code. At
8 All. Kamlendra Bahadur & Ors. Vs. State of U.P. & Anr.
621
that stage the Court is not to see whether
there is sufficient ground for conviction of
the accused or whether the trial is sure to
end in his conviction. Strong suspicion
against the accused, if the matter remains in
the region of suspicion, cannot take the
place of proof of his guilt at the conclusion
of the trial. But at the initial stage if there is
a strong suspicion which leads the Court to
think that there is ground for presuming
that the accused has committed an offence
then it is not open to the Court to say that
there is no sufficient ground for proceeding
against the accused. The presumption of the
guilt of the accused which is to be drawn at
the, initial stage is not in the sense of the
law governing the trial of criminal cases in
France where the accused is presumed to be
guilty unless the contrary is proved. But it
is only for the purpose of deciding prima
facie whether the Court should proceed
with the trial or not. if the evidence which
the Prosecutor proposes to adduce to prove
the guilt of the accused even if fully
accepted before it is challenged in crossexamination or rebutted by the defence
evidence, if any, cannot show that the
accused committed the offence, then there
will be no sufficient ground for proceeding
with the trial. An exhaustive list of the
circumstances to indicate as to what will
lead to one conclusion or the other is
neither possible nor advisable. We may just
illustrate the difference of the law by one
more example. If the scales of pan as to the
guilt or innocence of the accused are
something like even at the conclusion of
the, trial, then, on the theory of benefit of
doubt the case is to end in his acquittal. But
if, on the other hand, it is so at the initial
stage of making an order under Section 227
or Section 228, then in such a situation
ordinarily and generally the order which
will have to be made will be one under
Section 228 and not under Section 227.

5. In Nirmaljit Singh Hoon v. The
State of West Bengal - Shelat, J. delivering
the judgment on behalf of the majority of the
Court referred at page 79 of the report to the
earlier decisions of this Court in Chandra Deo
Singh v. Prokash Chandra Bose - where this
Court was held to have laid down with
reference to the similar provisions contained
in Sections 202 and 203 of the Code of
Criminal Procedure, 1898 "that the test was
whether there was sufficient ground for
proceeding and not whether there was
sufficient
ground
for
conviction,
and
observed that where there was prima facie
evidence, even though the person charged of
an offence in the complaint might have a
defence, the matter had to be left to be
decided by the appropriate forum at the
appropriate stage and issue of a process could
not be refused." Illustratively, Shelat J,
further
added
"Unless,
therefore,
the
Magistrate finds that the evidence led before
him is self-contradictory, or intrinsically
untrustworthy, process cannot be refused if
that evidence makes out a prima facie case".

10. The ambit and scope of the exercise
of powers while passing an order of discharge
under Section 227 of the Code was subject
matter of consideration in Union of India vs.
Prafulla Kumar Samal And Another4, and
it was held that the Court while exercising
such powers is not to act as a trial judge but
should weigh evidence and form opinion
only on the limited question of whether a
prima facie case is made out. The principles
to be applied for the purpose were stated as
follows :-

"7. Section 227 of the Code runs
thus :

If, upon consideration of the
record of the case and the documents
submitted therewith, and after hearing the
622 INDIAN LAW REPORTS ALLAHABAD SERIES
submissions of the accused and the
prosecution in this behalf, the Judge
considers that there is not sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his
reasons for so doing.

The words 'not sufficient ground
for proceeding against the accused' clearly
show that the Judge is not a mere post
office to frame the charge at the behest of
the prosecution, but has to exercise his
judicial mind to the facts of the case in
order to determine whether a case for trial
has been made out by the prosecution. In
assessing this fact, it is not necessary for
the court to enter into the pros and cons of
the matter or into a weighing and balancing
of evidence and probabilities which is
really his function after the trial starts. At
the stage of Section 227, the Judge has
merely to sift the evidence in order to find
out whether or not there is sufficient
ground for proceeding against the accused.
The sufficiency of ground would take
within its fold the nature of the evidence
recorded by the police or the documents
produced before the court which ex facie
disclose
that
there
are
suspicious
circumstances against the accused so as to
frame a charge against him.

8. The scope of Section 227 of
the Code was considered by a recent
decision of this Court in the case of State of
Bihar v. Ramesh Singh (1977) 4 SCC 39
where Untwalia, J. speaking for the Court
observed as follows:-

Strong
suspicion
against
the
accused, if the matter remains in the region
of suspicion, cannot take the place of proof
of his guilt at the conclusion of the trial.
But at the initial stage if there is a strong
suspicion which leads the Court to think
that there is ground for presuming that the
accused has committed an offence then it is
not open to the Court to say that there is no
sufficient ground for proceeding against the
accused. The presumption of the guilt of
the accused which is to be drawn at the
initial stage is not in the sense of the law
governing the trial of criminal cases in
France where the accused is presumed to be
guilty unless the contrary is proved. But it
is only for the purpose of deciding prima
facie whether the Court should proceed
with the trial or not. If the evidence which
the Prosecutor proposes to adduce to prove
the guilt of the accused even if fully
accepted before it is challenged in crossexamination or rebutted by the defence
evidence; if any, cannot show that the
accused committed the offence then there
will be no sufficient ground for proceeding
with the trial.

This Court has thus held that
whereas strong suspicion may not take the
place of the proof at the trial stage, yet it
may be sufficient for the satisfaction of ths
Sessions Judge in order to frame a charge
against the accused. Even under the Code
of 1898 this Court has held that a
committing Magistrate had ample powers
to weigh the evidence for the limited
purpose of finding out whether or not a
case of commitment to the Sessions Judge
has been made out.

9. In the case of K. P. Raghavan
v. M. H. Abbas AIR 1967 SC 740, this
Court observed as follows :

No doubt a Magistrate enquiring
into a case under Section 209, Cr. P.C. is
not to act as a mere Post Office, and has to
come to a conclusion whether the case
before him is fit for commitment of the
accused to the Court of Session.
8 All. Kamlendra Bahadur & Ors. Vs. State of U.P. & Anr.
623

To the same effect is the later
decision of this Court in the case of
Almohan Das v. State of West Bengal
(1969) 2 SCR 520, where Shah, J. speaking
for the Court observed as follows :

"A Magistrate holding an enquiry
is not intended to act merely as a recording
machine. He is entitled to sift and weigh
the materials on record, but only for seeing
whether there is sufficient evidence for
commitment, and not whether there is
sufficient evidence for conviction. If there
is no prima facie evidence or the evidence
is totally unworthy of credit, it is his duty
to discharge the accused : if there is some
evidence on which a conviction may
reasonably be based, he must commit the
case.

In the aforesaid case this Court
was considering the scope and ambit of
Section 209 of the Code of 1898.

10. Thus, on a consideration of
the authorities mentioned above, the
following principles emerge :

(1)
That
the
Judge
while
considering the question of framing the
charges under Section 227 of the Code 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.

(2) 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.

(3) The test to determine a prima
facie case would naturally depend upon the
facts of each case and it is difficult to lay
down a rule of universal application. By
and large however if two views are equally
possible and the Judge is satisfied that the
evidence produced before him while giving
rise to some suspicion but not grave
suspicion against the accused, he will be
fully within his right to discharge the
accused.

(4)
That
in
exercising
his
jurisdiction under section 227 of the Code
the Judge which under the present Code is
a senior and experienced 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 appearing in the case and so on.
This however does not mean that the judge
should make a roving enquiry into the pros
and cons of the matter and weigh the
evidence as if he was conducting a trial."

11. In Niranjan Singh Karam Singh
Punjabi, Vs. Jitendra Bhimraj Bijjaya
and others5, it was held that at the stage of
Sections 227-228, the court is required to
evaluate the material and documents on
record with a view to finding out if the
facts emerging therefrom taken at their face
value disclose the existence of all the
ingredients constituting the alleged offence
and for this limited purpose, the court may
sift the evidence. The observations made in
the judgment in this regard are as follows :-

"4. ...The procedure for trial
before a Court of Sessions is set out in
Chapter XVIII of the Code. Section 225
places the public prosecutor in charge of
the conduct of the prosecution. Section 226
requires him to open the prosecution case
by describing the charge against the
624 INDIAN LAW REPORTS ALLAHABAD SERIES
accused and stating by what evidence he
proposes to bring home the guilt against the
accused. Once that is done the Judge has to
consider whether or not to frame a charge.
Section 227 of the Code reads as under:

"227. If, upon consideration of
the record of the case and the documents
submitted therewith, and after hearing the
submissions of the accused and the
prosecution in this behalf, the Judge
considers that there is not sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his
reasons for so doing.

Under this section a duty is cast
on the judge to apply his mind to the
material on record and if on examination of
the record he does not find sufficient
ground for proceeding against the accused,
he must discharge him. On the other hand if
after such consideration and hearing he is
satisfied that a prima facie case is made out
against the accused, he must proceed to
frame a charge as required by Section 228
of the Code. Once the charge is framed the
trial must ordinarily end in the conviction
or acquittal of the accused. This is in brief
the scheme of Sections 225 to 235 of the
Code.

5. Section 227, introduced for the
first time in the New Code, confers a
special power on the Judge to discharge an
accused
at
the
threshold
if
'upon
consideration' of the record and documents
he considers 'that there is not sufficient
ground' for proceeding against the accused.
In other words his consideration of the
record and document at that stage is for the
limited purpose of ascertaining whether or
not there exists sufficient grounds for
proceeding with the trial against the
accused. If he comes to the conclusion that
there is sufficient ground to proceed, he
will frame a charge under Section 228, if
not he will discharge the accused. It must
be remembered that this section was
introduced in the Code to avoid waste of
public time over cases which did not
disclose a prima facie case and to save the
accused from avoidable harassment and
expenditure.

6. The next question is what is the
scope and ambit of the 'consideration' by
the trial court at that stage. Can he marshal
the evidence found on the record of the
case and in the documents placed before
him as he would do on the conclusion of
the evidence adduced by the prosecution
after the charge is framed? It is obvious
that since he is at the stage of deciding
whether or not there exists sufficient
grounds for framing the charge, his enquiry
must necessarily be limited to deciding if
the facts emerging from the record and
documents constitute the offence with
which the accused is charged. At that stage
he may sift the evidence for that limited
purpose but he is not required to marshal
the evidence with a view to separating the
grain from the chaff. All that he is called
upon to consider is whether there is
sufficient ground to frame the charge and
for this limited purpose he must weigh the
material on record as well as the documents
relied on by the prosecution. In the State of
Bihar v. Ramesh Singh 1977 CriLJ 1606
this Court observed that at the initial stage
of the framing of a charge if there is a
strong suspicion-evidence which leads the
Court to think that there is ground for
presuming that the accused has committed
an offence then it is not open to the Court
to say that there is no sufficient ground for
proceeding against the accused. If the
evidence which the prosecutor proposes to
adduce to prove the guilt of the accused,
8 All. Kamlendra Bahadur & Ors. Vs. State of U.P. & Anr.
625
even if fully accepted before it is
challenged
by
cross-examination
or
rebutted by the defence evidence, if any,
cannot show that the accused committed
the offence, then there will be no sufficient
ground for proceeding with the trial. In
Union of India v. Prafulla Kumar Samal
and Anr. 1979 CriLJ 154 , this Court after
considering the scope of Section 227
observed that the words 'no sufficient
ground for proceeding against the accused'
clearly show that the Judge is not merely a
post-office to frame charge at the behest of
the prosecution but he has to exercise his
judicial mind to the facts of the case in
order to determine that a case for trial has
been made out by the prosecution. In
assessing this fact it is not necessary for the
court to enter into the pros and cons of the
matter or into weighing and balancing of
evidence and probabilities but he may
evaluate the material to find out if the facts
emerging therefrom taken at their facevalue establish the ingredients constituting
the said offence. After considering the case
law on the subject, this Court deduced as
under:

(1)
That
the
Judge
while
considering the question of framing the
charges under Section 227 of the Code 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.

(2) 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.

(3) The test to determine a prima
facie case would naturally depend upon the
facts of each case and it is difficult to lay
down a rule of universal application. By
and large however if two views are equally
possible and the Judge is satisfied that the
evidence adduced before him while giving
rise to some suspicion but not grave
suspicion against the accused he will be
fully within his right to discharge the
accused.

(4)
That
in
exercising
his
jurisdiction under Section 227 of the
Code of Judge which (sic) under the
present Code is a senior and experienced
Judge cannot act merely as a Post office
or a mouth-piece 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 appearing in
the case and so on. This however does
not mean that the Judge should make a
roving enquiry into the pros and cons of
the matter and weigh the evidence as if he
was conducting a trial.

7.
Again
in
Supdt.
&
Remembrancer of Legal Affairs, West
Bengal v. Anil Kumar Bhunja and Ors.
1979 CriLJ 1390 this Court observed in
paragraph 18 of the Judgment as under:

The standard of test, proof and
judgment which is to be applied finally
before finding, the accused guilty or
otherwise, is not exactly to be applied at the
stage of Section 227 or 228 of the CrPC,
1973. At this stage, even a very strong
suspicion founded upon materials before
the Magistrate which leads him to form a
presumptive opinion as to the existence of
the factual ingredients constituting the
offence alleged, may justify the framing of
discharge against the accused in respect of
the commission of that offence.
626 INDIAN LAW REPORTS ALLAHABAD SERIES

From the above discussion it
seems well-settled that at the Sections 227228 stage the Court is required to evaluate
the material and documents on record with
a view to finding out if the facts emerging
there-from
taken
at
their
face-value
disclose the existence of all the ingredients
constituting the alleged offence. The Court
may 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."

12. The prerequisites for framing of
charge were subject matter of consideration
in Soma Chakravarty vs. State through
CBI6, and it was held that the court can
frame the charge if on the basis of material
on record it can form an opinion that the
commission of offence by the accused was
possible. The question as to whether the
accused committed the offence can only be
decided in the trial, and at the stage of
framing of charge the probative value of
the material on record cannot be gone into
and the said material has to be accepted as
true. The observations made in the
judgment in this regard are as follows :-

"9. Learned Counsel for the
appellant relied on the decisions of this Court
in Union of India v. Major J.S. Khanna,
(1972) 3 SCC 873, State of Maharashtra v.
Som Nath Thapa, (1996) 4 SCC 659 and L.
Chandraiah v. State of A.P., (2003) 12 SCC
670 and contended that before framing the
charges the court must have some material on
the basis of which it can come to the
conclusion that there is a prima facie case
against the accused. In our opinion there was
such material before the court while framing
the charge.

10. It may be mentioned that the
settled legal position, as mentioned in the
above decisions, is that if on the basis of
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. At the time of framing of the
charges the probative value of the material
on record cannot be gone into, and the
material
brought
on
record
by
the
prosecution has to be accepted as true at
that stage. Before framing a charge the
court must apply its judicial mind on the
material placed on record and must be
satisfied that the commitment of offence by
the accused was possible. Whether, in fact,
the accused committed the offence, can
only be decided in the trial."

13. The question as to when discharge
of an accused would be warranted in
exercise of powers under Section 227 of the
Code in the light of its scope and object
was considered in P. Vijayan vs. State of
Kerala and another7, and it was held that
at the stage of Section 227, the Court has
merely to sift the elements in order to find
out whether or not there is sufficient
ground for proceeding against the accused
and if the judge comes to a conclusion that
there is sufficient ground to proceed, he
will frame a charge under Section 228, if
not, he will discharge the accused. The
position of law in this regard was stated as
follows :-

"10.
Before
considering
the
merits of the claim of both the parties, it is
useful to refer to Section 227 of the Code
of Criminal Procedure, 1973, which reads
as under :
8 All. Kamlendra Bahadur & Ors. Vs. State of U.P. & Anr.
627

"227.
Discharge.--If,
upon
consideration of the record of the case and
the documents submitted therewith, and
after hearing the submissions of the
accused and the prosecution in this behalf,
the Judge considers that there is not
sufficient ground for proceeding against the
accused, he shall discharge the accused and
record his reasons for so doing."

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. Further, the words "not sufficient
ground for proceeding against the accused"
clearly show that the Judge is not a mere
post office to frame the charge at the behest
of the prosecution, but has to exercise his
judicial mind to the facts of the case in
order to determine whether a case for trial
has been made out by the prosecution. In
assessing this fact, it is not necessary for
the court to enter into the pros and cons of
the matter or into a weighing and balancing
of evidence and probabilities which is
really the function of the court, after the
trial starts.

11. At the stage of Section 227,
the Judge has merely to sift the evidence in
order to find out whether or not there is
sufficient ground for proceeding against the
accused. In other words, the sufficiency of
ground would take within its fold the nature
of the evidence recorded by the police or
the documents produced before the court
which ex facie disclose that there are
suspicious
circumstances
against
the
accused so as to frame a charge against
him.

...........

...........

14. The scope and ambit of
Section 227 was again considered in
Niranjan Singh Karam Singh Punjabi vs.
Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76,
in para 6, this Court held that: (SCC pp. 8384)

"6. .... Can he marshal the
evidence found on the record of the case
and in the documents placed before him as
he would do on the conclusion of the
evidence adduced by the prosecution after
the charge is framed? It is obvious that
since he is at the stage of deciding whether
or not there exists sufficient grounds for
framing the charge, his enquiry must
necessarily be limited to deciding if the
facts emerging from the record and
documents constitute the offence with
which the accused is charged. At that stage
he may sift the evidence for that limited
purpose but he is not required to marshal
the evidence with a view to separating the
grain from the chaff. All that he is called
upon to consider is whether there is
sufficient ground to frame the charge and
for this limited purpose he must weigh the
material on record as well as the documents
relied on by the prosecution. In State of
Bihar v. Ramesh Singh this Court observed
that at the initial stage of the framing of a
charge if there is a strong suspicion
evidence which leads the court to think that
there is ground for presuming that the
accused has committed an offence then it is
not open to the court to say that there is no
sufficient ground for proceeding against the
accused. If the evidence which the
prosecutor proposes to adduce to prove the
guilt of the accused, even if fully accepted
before
it
is
challenged
by
crossexamination or rebutted by the defence
evidence, if any, cannot show that the
accused committed the offence, then there
628 INDIAN LAW REPORTS ALLAHABAD SERIES
will be no sufficient ground for proceeding
with the trial. In Union of India v. Prafulla
Kumar Samal this Court after considering
the scope of Section 227 observed that the
words 'not sufficient ground for proceeding
against the accused' clearly show that the
Judge is not merely a post office to frame
charge at the behest of the prosecution but
he has to exercise his judicial mind to the
facts of the case in order to determine that a
case for trial has been made out by the
prosecution. In assessing this fact it is not
necessary for the court to enter into the
pros and cons of the matter or into
weighing and balancing of evidence and
probabilities but it may evaluate the
material to find out if the facts emerging
therefrom taken at their face value establish
the
ingredients
constituting
the
said
offence."

14. The scope of exercise of powers
under Sections 227 and 228 with regard to
framing of charge/discharge again fell for
consideration
in
Sajjan
Kumar
Vs.
Central Bureau of Investigation8, and it
was held that at the stage of framing of
charge under Section 228 or while
considering discharge petition filed under
Section 227, it is not for the Magistrate or a
Judge concerned to analyse all the
materials
including
pros
and
cons,
reliability or acceptability thereof, and it is
at the trial that the Judge concerned has to
appreciate evidentiary value, credibility or
otherwise of the material and veracity of
various documents. The observations made
in the judgment in this regard are as
follows :-

"20. A Magistrate enquiring into
a case under Section 209 of the Cr.P.C. is
not to act as a mere Post Office and has to
come to a conclusion whether the case
before him is fit for commitment of the
accused to the Court of Session. He is
entitled to sift and weigh the materials on
record, but only for seeing whether there is
sufficient evidence for commitment, and
not whether there is sufficient evidence for
conviction. If there is no prima facie
evidence
or
the
evidence
is
totally
unworthy of credit, it is the duty of the
Magistrate to discharge the accused, on the
other hand, if there is some evidence on
which the conviction may reasonably be
based, he must commit the case. It is also
clear that in exercising jurisdiction under
Section 227 of Cr.P.C., the Magistrate
should not make a roving enquiry into the
pros and cons of the matter and weigh the
evidence as if he was conducting a trial.

Exercise of jurisdiction under
Sections 227 & 228 of Cr.P.C.

21. On consideration of the
authorities about the scope of Section 227
and 228 of the Code, the following
principles emerge:

(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.