B K SHARMA Vs. STATE OF U P

JUDGEMENT

(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 Lodge District Aligarh, intentionally and knowingly and thereby committed an offence punishable u/s 302/34 I.P.C. 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 deceased as enumerated in the recovery memo (paper No. 18/1-A) and thereby he committed an offence punishable under Section 411 I.P.C.

(2.) The learned counsel for the applicant relying on Union of India v. Prafull Kumar Samal and another1 urged that the learned Sessions Judge without sifting 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.

(3.) The learned counsel for the State on other hand urged that there was sufficient evidence in support of prosecution case and the learned Sessions Judge has acted within the scope of Sections 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.