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. 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.

(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.