B.L.Yadav, J. - (1.) UNDER section 397/401 of the Code of Criminal Procedure 1973 (for short the Code) present revision has been directed against the order dated 16-3-1983 passed by Special Judge/Sessions Judge, Aligarh framing two charges against the applicant. The first charge is that the applicant in furtherance of the common intention of the co accused Amardeep and Shamim Ahmad committed the murder of Nirmal Kumar in the night between 6/7th June 1979, at about 8 P. M. village Jalalpur, P. S. Lodhe District Aligarh intentionally and knowingly and thereby committed an offence punishable under section 302/34 IPC. The second charge is that on 10-6-87 in a room of his house he (the applicant) was found in possession of the articles of the deceaeed as enumerated in the recovery memo (paper no. 18/1-A) and thereby he committed an offence punishable under section 411 IPC.
(2.) THE learned counsel for the applicant relying on Union of India v. Prafull Kumar Samal, AIR 1977 SC 366 urged that the learned Sessions Judge, without shifting and weighing the evidence has mechanically framed charges, in other words the order passed by the learned Judge was as a result of acting as post office. It was urged that under section 227 of the Code, the learned Judge need not act as a mouth piece of the prosecution. It was urged that there was no evidence in support of the charges and there was no sufficient ground for proceeding, hence applicant must have been discharged. The learned counsel for the State on the other hand urged that there was sufficient evidence in support of prosecution case and the learned Sessions Judge has acted within the scope of Section 227 and 229 of the Code. The order of discharge could have been passed only if there was no sufficient ground of proceedings, as there was ground for presuming that the accused has committed the offence hence charges were framed. Having heard learned counsel for the parties point for consideration is whether the learned Sessions Judge while framing charge under section 228 of the Code or passing an order of discharge under section 227 of the Code can shift and weigh the evidence on merits or just he has to apply his mind with a view to ascertain whether there was a prima facie case for proceeding against the accused. Under section 227 of the Code there is no doubt that the learned Judge can pass an order of discharge only if there is no sufficient ground for proceeding. The test is for consideration of the evidence to be satisfied prima facie and not with a view to weigh the evidence to ascertain whether the evidence was sufficient to pass an order of conviction.
(3.) IN Union of INdia v. Prafull Kumar Samal, AIR 1977 SC 366 relied upon by the learned counsel for the applicant, Supreme Court ruled that under section 227 of the Code, the Court has no doubt power to shift and weigh the evidence for limited purpose of rinding or not a prima facie case against the accused. IN case if material discloses a grave suspicion against the accused which have not been explained, the Court would be justified in framing the charge. Unless of course there is grave suspision against the accused he will be entitled to an order of discharge. But the learned Sessions judge could neither act as post office, nor mouth piece of the prosecution but has to consider the broad probabilities of the case and total effect of the evidence. In Superintendent and Remembrancer of Legal Affairs West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52 it was held as follows : - " At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. 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 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 factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence ". ;