227 239 251

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11. Section 227 of the Code of Criminal Procedure having

bearing on the contentions urged for the parties, provides:
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 no sufficient
ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.
12. Section 228 requires the Judge to frame charge if he
considers that there is ground for presuming that the
accused has committed the offence. The interaction of these
two sections has already been the subject-matter of
consideration by this Court. In State of Bihar v. Ramesh
Singh1, Untwalia, J., while explaining the scope of the said
sections observed: [SCR p. 259 : SCC pp. 41-42 : SCC (Cri)
pp. 535-36, para 4]
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 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
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that there is no sufficient ground for proceeding against the

accused.
13. In Union of India v. Prafulla Kumar Samal2, Fazal Ali, J.,
summarised some of the principles: [SCR pp. 234-35 : SCC p.
9 : SCC (Cri) pp. 613-14, para 10]
(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 had 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.
14. These two decisions do not lay down different principles.
Prafulla Kumar case2 has only reiterated what has been
stated in Ramesh Singh case1. In fact, Section 227 itself
contains enough guidelines as to the scope of enquiry for the
purpose of discharging an accused. It provides that the
Judge shall discharge when he considers that there is no
sufficient ground for proceeding against the accused. The
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ground in the context is not a ground for conviction, but a
ground for putting the accused on trial. It is in the trial, the
guilt or the innocence of the accused will be determined and
not at the time of framing of charge. The court, therefore,
need not undertake an elaborate enquiry in sifting and
weighing the material. Nor is it necessary to delve deep into
various aspects. All that the court has to consider is whether
the evidentiary material on record if generally accepted,
would reasonably connect the accused with the crime. No
more need be enquired into.
20. We wish to add a word regarding interference by the
High Court against a charge framed by the Sessions Court.
Section 227 which confers power to discharge an accused
was designed to prevent harassment to an innocent person
by the arduous trial or the ordeal of prosecution. How that
intention is to be achieved is reasonably clear in the section
itself. The power has been entrusted to the Sessions Judge
who brings to bear his knowledge and experience in criminal
trials. Besides, he has the assistance of counsel for the
accused and Public Prosecutor. He is required to hear both
sides before framing any charge against the accused or for
discharging him. If the Sessions Judge after hearing the
parties frames a charge and also makes an order in support
thereof, the law must be allowed to take its own course. Selfrestraint on the part of the High Court should be the rule
unless there is a glaring injustice which stares the court in
the face. The opinion on any matter may differ depending
upon the person who views it. There may be as many
opinions on a particular matter as there are courts but it is
no ground for the High Court to interdict the trial. It would be
better for the High Court to allow the trial to proceed.
Stree Atyachar Virodhi Parishad v. Dilip Nathumal
Chordia, (1989) 1 SCC 715
16**.
.
it
has
consistently been held by this Court that at the time of

framing the charge, the only documents which are required
to be considered are the documents submitted by the
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investigating agency along with the charge-sheet. Any

document which the accused wants to rely upon cannot be
read as evidence. If such evidence is to be considered, there
would be a mini-trial at the stage of framing of charge. That
would defeat the object of the Code. The provision about
hearing the submissions of the accused as postulated by
Section 227 means hearing the submissions of the accused
on the record of the case as filed by the prosecution and
documents submitted therewith and nothing more. Even if,
in a rare case it is permissible to consider the defence
evidence, if such material convincingly establishes that the
whole prosecution version is totally absurd, preposterous or
concocted, the instant case does not fall in that category.
(Vide State of Orissa v. Debendra Nath Padhi5, State of
Orissa v. Debendra Nath Padhi6, S.M.S. Pharmaceuticals Ltd.
v. Neeta Bhalla7, Bharat Parikh v. CBI8 and Rukmini
Narvekar v. Vijaya Satardekar9.)
17. The court should not pass an order of acquittal by
resorting to a course of not taking cognizance, where prima
facie case is made out by the investigating agency. More so,
it is the duty of the court to safeguard the rights and
interests of the victim, who does not participate in the
discharge proceedings. At the stage of application of Section
227, the court has to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding
against the accused. Thus, appreciation of evidence at this
stage, is not permissible. (Vide P. Vijayan v. State of Kerala10
and R.S. Mishra v. State of Orissa11.)
Ajay Kumar Parmar v. State of Rajasthan, (2012) 12
SCC 406
8. The law on the subject is now well settled, as pointed out
in Niranjan Singh Punjabi v. Jitendra Bijjaya2 that at Sections
227 and 228 stage 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. The Court may, for this limited purpose, sift
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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. Therefore, at the stage of framing
of the charge the Court has to consider the material with a
view to find out if there is ground for presuming that the
accused has committed the offence or that there is not
sufficient ground for proceeding against him and not for the
purpose of arriving at the conclusion that it is not likely to
lead to a conviction.
State of Maharashtra v. Priya Sharan Maharaj, (1997)
4 SCC 393
15. It is well settled that at the stage of framing charge the
court is not expected to go deep into the probative value of
the materials on record. If on the basis of materials on record
the court could come to the conclusion that the accused
would have committed the offence the court is obliged to
frame the charge and proceed to the trial.
Umar Abdul Sakoor Sorathia v. Intelligence Officer,
Narcotic Control Bureau, (2000) 1 SCC 138
8. We wish to point out that if the trial court decides to
frame a charge there is no legal requirement that he should
pass an order specifying the reasons as to why he opts to do
so. Framing of charge itself is prima facie order that the trial
Judge has formed the opinion, upon considering the police
report and other documents and after hearing both sides,
committed the offence concerned. Chapter XIX deals with
provisions for trial of warrant cases instituted on a police
report. Section 239 reads thus:
239. When accused shall be discharged.(1) If, upon
considering the police report and the documents sent with it
under Section 173 and making such examination, if any, of
the accused as the Magistrate thinks necessary and after
giving the prosecution and the accused an opportunity of
being heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the accused,
and record his reasons for so doing.
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9. The said section shows that the Magistrate is obliged to

record his reasons if he decides to discharge the accused.
The next section (Section 240) reads thus:
240. Framing of charge.(1) If, upon such consideration,
examination, if any, and hearing, the Magistrate is of opinion
committed an offence triable under this Chapter, which such
Magistrate is competent to try and which, in his opinion,
could be adequately punished by him, he shall frame in
writing a charge against the accused.
(2) The charge shall then be read and explained to the
accused, and he shall be asked whether he pleads guilty of
the offence charged or claims to be tried.
10. It is pertinent to note that this section required a
Magistrate to record his reasons for discharging the accused
but there is no such requirement if he forms the opinion that
there is ground for presuming that the accused had
committed the offence which he is competent to try. In such
a situation he is only required to frame a charge in writing
against the accused.
11. Even in cases instituted otherwise than on a police
report the Magistrate is required to write an order showing
the reasons only if he is to discharge the accused. This is
clear from Section 245. As per the first sub-section of
Section 245, if a Magistrate, after taking all the evidence
considers that no case against the accused has been made
out which if unrebutted would warrant his conviction, he
shall discharge the accused. As per sub-section (2) the
Magistrate is empowered to discharge the accused at any
previous stage of the case if he considers the charge to be
groundless. Under both sub-sections he is obliged to record
his reasons for doing so. In this context it is pertinent to
point out that even in a trial before a Court of Session, the
Judge is required to record reasons only if he decides to
discharge the accused (vide Section 227 of the Code). But if
he is to frame the charge he may do so without recording his
reasons for showing why he framed the charge.
12. If there is no legal requirement that the trial court should
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write an order showing the reasons for framing a charge,
why should the already burdened trial courts be further
burdened with such an extra work. The time has reached to
adopt all possible measures to expedite the court procedures
and to chalk out measures to avert all roadblocks causing
avoidable delays. If a Magistrate is to write detailed orders at
different stages merely because the counsel would address
arguments at all stages, the snail-paced progress of
proceedings in trial courts would further be slowed down. We
are coming across interlocutory orders of Magistrates and
Sessions
Judges
running
into
several
pages. We
can
appreciate if such a detailed order has been passed for

culminating the proceedings before them. But it is quite
unnecessary to write detailed orders at other stages, such as
issuing process, remanding the accused to custody, framing
of charges, passing over to next stages in the trial. It is a
salutary guideline that when orders rejecting or granting bail
are passed, the court should avoid expressing one way or
the other on contentious issues, except in cases such as
those falling within Section 37 of the Narcotic Drugs and
Psychotropic Substances Act, 1985.
Kanti Bhadra Shah v. State of W.B., (2000) 1 SCC 722
4. In our view, it is apparent that the entire approach of the
High Court is illegal and erroneous. From the reasons
recorded by the High Court, it appears that instead of
considering the prima facie case, the High Court has
appreciated and weighed the materials on record for coming
to the conclusion that charge against the respondents could
not have been framed. It is settled law that at the stage of
framing the charge, the court has to prima facie consider
whether there is sufficient ground for proceeding against the
accused. The court is not required to appreciate the
evidence and arrive at the conclusion that the materials
produced are sufficient or not for convicting the accused. If
the court is satisfied that a prima facie case is made out for
proceeding further then a charge has to be framed. The
charge can be quashed if the evidence which the prosecutor
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proposes to adduce to prove the guilt of the accused, even if

fully accepted before it is challenged by cross-examination
or rebutted by defence evidence, if any, cannot show that
the accused committed the particular offence. In such case,
there would be no sufficient ground for proceeding with the
trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra
Bhimraj Bijjayya1 after considering the provisions of Sections
227 and 228 CrPC, the Court posed a question, whether at
the stage of framing the charge, the trial court should
marshal the materials on the record of the case as he would
do on the conclusion of the trial. The Court held that at the
stage of framing the charge inquiry must necessarily be
limited to deciding if the facts emerging from such materials
constitute the offence with which the accused could be
charged. The court may peruse the records for that limited
purpose, but it is not required to marshal it with a view to
decide the reliability thereof. The Court referred to earlier
decisions in State of Bihar v. Ramesh Singh2, Union of India
v. Prafulla Kumar Samal3 and Supdt. & Remembrancer of
Legal Affairs, W.B. v. Anil Kumar Bhunja4 and held thus: (SCC
p. 85, para 7)
From the above discussion it seems well settled that at the
Sections 227-228 stage 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. The court may for this limited purpose sift
the evidence as it cannot be expected even at the 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.
(emphasis supplied)
State of M.P. v. S.B. Johari, (2000) 2 SCC 57
5. Section 227 in Chapter XVIII, pertaining to a trial before a
Court of Session, pursuant to a committal order and Section
239 in Chapter XIX relating to trial of warrant cases by
Magistrates, of the Code stipulates the circumstances and
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stage at which there could be a discharge of the person

accused, and that stage is a stage of consideration, anterior
in point of time to framing charges. It is envisaged therein
that upon consideration of the record of the case, police
report and the documents submitted therewith and after
hearing the prosecution and the accused, the court is
obligated to decide whether there is sufficient ground to
proceed against the accused or that the charge is groundless
and as a consequence thereof either discharge the
accused or frame in writing the charges against the accused.
The decision reported in Satish Mehra1 and the other
decisions adverted to therein dealt with, no doubt, the
manner of exercise of such powers and the object underlying
those provisions of the Code while construing the amplitude
of both the language and content of powers conferred
therein. It is in this context this Court held that there is
nothing in the Code which shrinks the scope of hearing by
confining it to only oral argument of the accused and
consideration based upon the police report and documents
sent therewith or the materials presented by the prosecution
at that stage. In substance, looking into also, by receiving
any materials which the accused is able to produce in
support of his stand during such arguments was held to be
not an anathema.
6. The question, at the present stage of the proceedings
before the trial court would be to address itself to find
whether there is sufficient ground for proceeding to the next
stage against the accused. If the accused could produce any
reliable material even at that stage which might totally
affect even the very sustainability of the case, a refusal to
even look into the materials so produced may result in
injustice, apart from averting an exercise in futility at the
expense of valuable judicia1/public time. It is trite law that
the standard of proof normally adhered to at the final stage
is not to be insisted upon at the stage where the
consideration is to be confined to find out a prima facie case
and decide whether it is necessary to proceed to the next
stage of framing the charges and making the accused to
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stand trial for the same. This Court has already cautioned
against undertaking a roving inquiry into the pros and cons
of the case by weighing the evidence or collecting materials,
as if during the course or after trial vide Union of India v.
Prafulla
Kumar Samal3. Ultimately, this
would always
depend upon the facts of each case and it would be difficult

to lay down a rule of universal application and for all times.
Om Parkash Sharma v. CBI, Delhi, (2000) 5 SCC 679
7. In the backdrop of the factual position discussed above,
the question formulated earlier arises for our consideration.
The legal position is well settled that at the stage of framing
of charge the trial court is not to examine and assess in
detail the materials placed on record by the prosecution nor
is it for the court to consider the sufficiency of the materials
to establish the offence alleged against the accused persons.
At the stage of charge the court is to examine the materials
only with a view to be satisfied that a prima facie case of
commission of offence alleged has been made out against
the accused persons. It is also well settled that when the
petition is filed by the accused under Section 482 CrPC
seeking for the quashing of charge framed against them the
court should not interfere with the order unless there are
strong reasons to hold that in the interest of justice and to
avoid abuse of the process of the court a charge framed
against the accused needs to be quashed. Such an order can
be passed only in exceptional cases and on rare occasions. It
is to be kept in mind that once the trial court has framed a
charge against an accused the trial must proceed without
unnecessary interference by a superior court and the entire
evidence from the prosecution side should be placed on
record. Any attempt by an accused for quashing of a charge
before the entire prosecution evidence has come on record
should not be entertained sans exceptional cases.
8. In this connection we may refer to the case of Radhey
Shyam v. Kunj Behari1 in which a Bench of three learned
Judges of this Court referring to the decision in Mohd. Akbar
Dar v. State of J&K2 pointed out that at the stage of framing
of
charges
meticulous
consideration
of
evidence
and
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materials by the court is not required. This Court further

observed: (SCC p. 575, paras 9-10)
9. The High Court has also deemed it necessary to quash
the charge against Respondents 1 to 3 because in its opinion
the evidence proposed to be adduced by the prosecution,
even if fully accepted, cannot show that Respondents 1 to 3
committed any offence and referred in that behalf to the
decision in State of Bihar v. Ramesh Singh3. We find that the
High Court's conclusion about the inadequacy of the
evidence against Respondents 1 to 3, besides being a
premature assessment of evidence, is also attributable to
the wrong premises on which the High Court's reasoning is
based.
10. We, therefore, find that there was no warrant for the
High Court to quash the charge against Respondents 1 to 3
in exercise of its powers under Section 482 CrPC.
9. In the case of Minakshi Bala v. Sudhir Kumar4 this Court
considered the question of quashing of charge by the High
Court in invoking its inherent jurisdiction under Section 482
CrPC. In that context, this Court made the following pertinent
observations: (SCC p. 145, paras 7-8)
To put it differently, once charges are framed under Section
240 CrPC the High Court in its revisional jurisdiction would
not be justified in relying upon documents other than those
referred to in Sections 239 and 240 CrPC; nor would it be
justified in invoking its inherent jurisdiction under Section
482 CrPC to quash the same except in those rare cases
where forensic exigencies and formidable compulsions justify
such a course. We hasten to add even in such exceptional
cases the High Court can look into only those documents
which are unimpeachable and can be legally translated into
relevant evidence.
Apart from the infirmity in the approach of the High Court in
dealing with the matter which we have already noticed, we
further find that instead of adverting to and confining its
attention to the documents referred to in Sections 239 and
240 CrPC the High Court has dealt with the rival contentions
of the parties raised through their respective affidavits at
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length and on a threadbare discussion thereof passed the
impugned
order.
The
course
so
adopted
cannot
be
supported; firstly, because finding regarding commission of

an offence cannot be recorded on the basis of affidavit
evidence and secondly, because at the stage of framing of
charge the Court cannot usurp the functions of a trial court
to delve into and decide upon the respective merits of the
case.
10. In a recent decision in State of M.P. v. S.B. Johari5 this
Court, adverting to the question of quashing of charges in
the light of the provisions contained in Sections 227 and
288, 401 and 397 and 482 CrPC did not favour the approach
of the High Court in meticulously examining the materials on
record for coming to the conclusion that the charge could
not have been framed for a particular offence. This Court,
while quashing and setting aside the order passed by the
High Court, made the following observations: (SCC p. 60,
paras 3-4)
After considering the material on record, learned Sessions
Judge framed the charge as stated above. That charge is
quashed by the High Court against the respondents by
accepting the contention raised and considering the details
of the material produced on record. The same is challenged
by filing these appeals.
In our view, it is apparent that the entire approach of the
High Court is illegal and erroneous. From the reasons
recorded by the High Court, it appears that instead of
considering the prima facie case, the High Court has
appreciated and weighed the materials on record for coming
to the conclusion that charge against the respondents could
not have been framed. It is settled law that at the stage of
framing the charge, the court has to prima facie consider
accused. The court is not required to appreciate the
evidence and arrive at the conclusion that the materials
produced are sufficient or not for convicting the accused. If
proceeding further then a charge has to be framed. The
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charge can be quashed if the evidence which the prosecutor

fully accepted before it is challenged by cross- examination
or rebutted by defence evidence, if any, cannot show that
the accused committed the particular offence. In such case,
there would be no sufficient ground for proceeding with the
trial.
State of Delhi v. Gyan Devi, (2000) 8 SCC 239
1. Can the trial court at the time of framing of charge
consider material filed by the accused, is the point for
determination in these matters.
2. In Satish Mehra v. Delhi Admn.1 a two-Judge Bench
judgment, it was observed that if the accused succeeds in
producing any reliable material at the stage of taking
cognizance or framing of charge which might fatally affect
even the very sustainability of the case, it is unjust to
suggest that no such material should be looked into by the
court at that stage. It was held that the object of providing
an opportunity to the accused of making submissions as
envisaged in Section 227 of the Code of Criminal Procedure,
1973 (for short the Code) is to enable the court to decide
whether it is necessary to proceed to conduct the trial. If the
materials produced by the accused even at that early stage
would clinch the issue, why should the court shut it out
saying that such documents need be produced only after
wasting a lot more time in the name of trial proceedings? It
was further observed that there is nothing in the Code which
shrinks the scope of such audience to oral arguments and,
therefore, the trial court would be within its power to
consider even material which the accused may produce at
the stage contemplated in Section 227 of the Code.
3. When the arguments in the present case were heard by a
two-Judge Bench, considering various decisions including
three-Judge Bench decisions in Supdt. and Remembrancer of
Legal Affairs, W.B. v. Anil Kumar Bhunja2 and State of Bihar
v. Ramesh Singh3 it was observed that at the time of
framing a charge the trial court can consider only the
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material placed before it by the investigating agency, there

being no requirement in law for the court to grant at that
stage either an opportunity to the accused to produce
evidence in defence or consider such evidence the defence
may produce at that stage. But having regard to the views
expressed in Satish Mehra case1 it was directed that the
matter should be referred to a larger Bench. The order
referring the matter to a larger Bench is reported in State of
Orissa v. Debendra Nath Padhi4. Accordingly, these matters
have been placed before us to determine the question
abovenoticed.
6. At the stage of framing charge, the trial court is required
to consider whether there are sufficient grounds to proceed
against the accused. Section 227 of the Code provides for
the eventuality when the accused shall be discharged. If not
discharged, the charge against the accused is required to be
framed under Section 228. These two sections read as
under:
Section 227 CrPC
in this behalf, the Judge considers that there is not sufficient
Section 228 CrPC
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, and
thereupon the Chief Judicial Magistrate shall try the offence
in accordance with the procedure for the trial of warrant
cases instituted on a police report;
(b) is exclusively triable by the court, he shall frame in
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(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.
7.
Similarly,
in
respect
of
warrant
cases
triable
by
Magistrates, instituted on a police report, Sections 239 and

240 of the Code are the relevant statutory provisions.
Section 239 requires the Magistrate to consider the police
report and the documents sent with it under Section 173
and, if necessary, examine the accused and after giving the
accused an opportunity of being heard, if the Magistrate
considers the charge against the accused to be groundless,
the accused is liable to be discharged by recording reasons
thereof.
8. What is the meaning of the expression the record of the
case as used in Section 227 of the Code. Though the word
case is not defined in the Code but Section 209 throws
light on the interpretation to be placed on the said word.
Section 209 which deals with the commitment of case to the
Court of Session when offence is triable exclusively by it,
inter alia, provides that when it appears to the Magistrate
that the offence is triable exclusively by the Court of
Session, he shall commit the case to the Court of Session
and send to that court the record of the case and the
document and articles, if any, which are to be produced in
evidence and notify the Public Prosecutor of the commitment
of the case to the Court of Session. It is evident that the
record of the case and documents submitted therewith as
postulated in Section 227 relate to the case and the
documents referred in Section 209. That is the plain
meaning of Section 227 read with Section 209 of the Code.
No provision in the Code grants to the accused any right to
file any material or document at the stage of framing of
charge. That right is granted only at the stage of the trial.
9. Further, the scheme of the Code when examined in the
light of the provisions of the old Code of 1898, makes the
position more clear. In the old Code, there was no provision
similar to Section 227. Section 227 was incorporated in the
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Code with a view to save the accused from prolonged
harassment
which
is
necessary
concomitant
of
protracted criminal trial. It is calculated to eliminate

harassment
to
accused
persons
when
the
evidential
materials gathered after investigation fall short of minimum

legal requirements. If the evidence even if fully accepted
cannot show that the accused committed the offence, the
accused deserves to be discharged. In the old Code, the
procedure as contained in Sections 207 and 207-A was fairly
lengthy. Section 207, inter alia, provided that the Magistrate,
where the case is exclusively triable by a Court of Session in
any proceedings instituted on a police report, shall follow the
procedure specified in Section 207-A. Under Section 207-A in
any proceeding instituted on a police report the Magistrate
was required to hold inquiry in terms provided under subsection (1), to take evidence as provided in sub-section (4),
the accused could cross-examine and the prosecution could
re-examine the witnesses as provided in sub-section (5),
discharge the accused if in the opinion of the Magistrate the
evidence
and
documents
disclosed
no
grounds
for
committing him for trial, as provided in sub-section (6) and

to commit the accused for trial after framing of charge as
provided in sub-section (7), summon the witnesses of the
accused to appear before the court to which he has been
committed as provided in sub-section (11) and send the
record of the inquiry and any weapon or other thing which is
to be produced in evidence, to the Court of Session as
provided in sub-section (14). The aforesaid Sections 207 and
207-A have been omitted from the Code and a new Section
209 enacted on the recommendation of the Law Commission
contained in its 41st Report. It was realised that the
commitment inquiry under the old Code was resulting in
inordinate delay and served no useful purpose. That inquiry
has, therefore, been dispensed with in the Code with the
object of expeditious disposal of cases. Instead of the
committal Magistrate framing the charge, it is now to be
framed by the Court of Session under Section 228 in case
the accused is not discharged under Section 227. This
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change brought out in the Code is also required to be kept in

view while determining the question. Under the Code, the
evidence can be taken only after framing of charge.
10. Now, let us examine the decisions which have a bearing
on the point in issue.
11. In State of Bihar v. Ramesh Singh3 considering the
scope of Sections 227 and 228 of the Code, it was held that
at the stage of framing of charge it is not obligatory for the
judge 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. 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. Strong suspicion, at the initial stage of
framing of charge, is sufficient to frame the charge and in
that event it is not open to say that there is no sufficient
ground for proceeding against the accused.
12. In Supdt. and Remembrancer of Legal Affairs, W.B. v.
Anil Kumar Bhunja2 a three-Judge Bench held that the
Magistrate at the stage of framing charges had to see
whether the facts alleged and sought to be proved by the
prosecution prima facie disclose the commission of offence
on general consideration of the materials placed before him
by the investigating police officer. (emphasis supplied)
Though in this case the specific question whether an
accused at the stage of framing of charge has a right to
produce any material was not considered as such, but that
seems implicit when it was held that the Magistrate had to
consider material placed before it by the investigating police
officer.
13. In State of Delhi v. Gyan Devi5 this Court reiterated that
at the stage of framing of charge the trial court is not to
examine and assess in detail the materials placed on record
by the prosecution nor is it for the court to consider the
sufficiency of the materials to establish the offence alleged
against the accused persons.
14. In State of M.P. v. S.B. Johari6 it was held that the charge
can be quashed if the evidence which the prosecutor
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fully accepted, cannot show that the accused committed the
particular offence. In that case, there would be no sufficient
ground for proceeding with the trial.
15. In State of Maharashtra v. Priya Sharan Maharaj7 it was
held that at Sections 227 and 228 stage 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. 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.
16. All the decisions, when they hold that there can only be
limited evaluation of materials and documents on record and
sifting of evidence to prima facie find out whether sufficient
ground exists or not for the purpose of proceeding further
with the trial, have so held with reference to materials and
documents produced by the prosecution and not the
accused. The decisions proceed on the basis of settled legal
position that the material as produced by the prosecution
alone is to be considered and not the one produced by the
accused. The latter aspect relating to the accused though
has not been specifically stated, yet it is implicit in the
decisions. It seems to have not been specifically so stated as
it was taken to be a well-settled proposition. This aspect,
however, has been adverted to in State Anti-Corruption
Bureau v. P. Suryaprakasam8 where considering the scope of
Sections 239 and 240 of the Code it was held that at the
time of framing of charge, what the trial court is required to,
and can consider are only the police report referred to under
Section 173 of the Code and the documents sent with it. The
only right the accused has at that stage is of being heard
and nothing beyond that. (emphasis supplied) The judgment
of the High Court quashing the proceedings by looking into
the documents filed by the accused in support of his claim
that no case was made out against him even before the trial
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had commenced was reversed by this Court. It may be

noticed here that learned counsel for the parties addressed
the arguments on the basis that the principles applicable
would be same whether the case be under Sections 227
and 228 or under Sections 239 and 240 of the Code.
18. ........................................................ The scheme of the
Code and object with which Section 227 was incorporated
and Sections 207 and 207-A omitted have already been
noticed. Further, at the stage of framing of charge roving
and fishing inquiry is impermissible. If the contention of the
accused is accepted, there would be a mini-trial at the stage
of framing of charge. That would defeat the object of the
Code. It is well settled that at the stage of framing of charge
the defence of the accused cannot be put forth. The
acceptance of the contention of the learned counsel for the
accused would mean permitting the accused to adduce his
defence at the stage of framing of charge and for
examination thereof at that stage which is against the
criminal jurisprudence. By way of illustration, it may be
noted that the plea of alibi taken by the accused may have
to be examined at the stage of framing of charge if the
contention of the accused is accepted despite the wellsettled proposition that it is for the accused to lead evidence
at the trial to sustain such a plea. The accused would be
entitled to produce materials and documents in proof of such
a plea at the stage of framing of the charge, in case we
accept the contention put forth on behalf of the accused.
That has never been the intention of the law well settled for
over one hundred years now. It is in this light that the
provision about hearing the submissions of the accused as
postulated by Section 227 is to be understood. It only means
hearing the submissions of the accused on the record of the
case as filed by the prosecution and documents submitted
therewith and nothing more. The expression hearing the
submissions of the accused cannot mean opportunity to file
material to be granted to the accused and thereby changing
the settled law. At the stage of framing of charge hearing
the submissions of the accused has to be confined to the
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material produced by the police.

23. As a result of the aforesaid discussion, in our view,
clearly the law is that at the time of framing charge or taking
cognizance the accused has no right to produce any
material. Satish Mehra case holding that the trial court has
powers to consider even materials which the accused may
produce at the stage of Section 227 of the Code has not
been correctly decided.
25. Any document or other thing envisaged under the
aforesaid provision can be ordered to be produced on finding
that the same is necessary or desirable for the purpose of
investigation, inquiry, trial or other proceedings under the
Code. The first and foremost requirement of the section is
about the document being necessary or desirable. The
necessity or desirability would have to be seen with
reference to the stage when a prayer is made for the
production. If any document is necessary or desirable for the
defence of the accused, the question of invoking Section 91
at the initial stage of framing of a charge would not arise
since defence of the accused is not relevant at that stage.
When the section refers to investigation, inquiry, trial or
other proceedings, it is to be borne in mind that under the
section a police officer may move the court for summoning
and production of a document as may be necessary at any
of the stages mentioned in the section. Insofar as the
accused is concerned, his entitlement to seek order under
Section 91 would ordinarily not come till the stage of
defence. When the section talks of the document being
necessary and desirable, it is implicit that necessity and
desirability is to be examined considering the stage when
such a prayer for summoning and production is made and
the party who makes it, whether police or accused. If under
Section 227, what is necessary and relevant is only the
record produced in terms of Section 173 of the Code, the
accused cannot at that stage invoke Section 91 to seek
production of any document to show his innocence. Under
Section 91 summons for production of document can be
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issued by court and under a written order an officer in
charge of a police station can also direct production thereof.
Section 91 does not confer any right on the accused to
produce document in his possession to prove his defence.
Section 91 presupposes that when the document is not
produced process may be initiated to compel production
thereof.
27. Insofar as Section 91 is concerned, it was rightly held
that the width of the powers of that section was unlimited
but there were inbuilt, inherent limitations as to the stage or
point of time of its exercise, commensurate with the nature
of proceedings as also the compulsions of necessity and
desirability, to fulfil the task or achieve the object. Before
the trial court the stage was to find out whether there was
sufficient ground for proceeding to the next stage against
the accused. The application filed by the accused under
Section 91 of the Code for summoning and production of
document was dismissed and order was upheld by the High
Court and this Court. But observations were made in para 6
to the effect that if the accused could produce any reliable
material even at that stage which might totally affect even
the very sustainability of the case, a refusal to look into the
material so produced may result in injustice, apart from
averting an exercise in futility at the expense of valuable
judicia1/public time, these observations are clearly obiter
dicta and in any case of no consequence in view of
conclusion
reached
by
us
hereinbefore.
Further,
the
observations cannot be understood to mean that the

accused has a right to produce any document at the stage of
framing of charge having regard to the clear mandate of
Sections 227 and 228 in Chapter 18 and Sections 239 and
240 in Chapter 19.
28. We are of the view that jurisdiction under Section 91 of
the Code when invoked by the accused, the necessity and
desirability would have to be seen by the court in the
context of the purpose investigation, inquiry, trial or other
proceedings under the Code. It would also have to be borne
in mind that law does not permit a roving or fishing inquiry.
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29. Regarding the argument of the accused having to face
the trial despite being in a position to produce material of
unimpeachable character of sterling quality, the width of the
powers of the High Court under Section 482 of the Code and
Article 226 of the Constitution is unlimited whereunder in the
interests of justice the High Court can make such orders as
may be necessary to prevent abuse of the process of any
court or otherwise to secure the ends of justice within the
parameters laid down in Bhajan Lal case11.
State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC
568
4. In passing the impugned order, the High Court first made
the following observation:
In fact it is a settled law that while framing charges, the
court should apply its mind and consider the entire materials
not
only
produced
by
the
prosecution
but
also
the
explanation and the materials produced by the accused and

this should be objectively done and not subjectively. But in
this case, the lower court has utterly failed to do so.
(emphasis supplied)
and then proceeded to consider the documents filed by the
respondent to substantiate his claim that no offence as
alleged was committed by him. After a detailed discussion
thereon, the High Court upheld his claim and quashed the
proceeding.
5. Without meaning any disrespect to the High Court, we are
constrained to say that the settled law is just the reverse of
what the High Court has observed in the above-quoted
passage as would be evident from even a cursory reading of
Sections 239 and 240 CrPC, which admittedly govern the
case of the respondent. According to the above sections, at
the time of framing of a charge what the trial court is
required to, and can, consider are only the police report
referred to under Section 173 CrPC and the documents sent
with it. The only right the accused has at that stage is of
being heard and nothing beyond that. Of course, at that
stage the accused may be examined but that is a
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prerogative of the court only. Though, in view of the clear

language of the above sections, no authority need be cited
for the above proposition still we may refer to the judgment
of this Court in Minakshi Bala v. Sudhir Kumar1 (to which one
of us was a party) for therein, the scope and ambit of the
above sections came up for consideration and it was held:
(SCC p. 144, para 6)
6. Having regard to the fact that the offences, for which
charge-sheet was
submitted
in the instant case and
cognizance taken, were triable as a warrant case the

Magistrate was to proceed in accordance with Sections 239
and 240 of the Code at the time of framing of the charges.
Under the above sections, the Magistrate is first required to
consider the police report and the documents sent with it
under Section 173 CrPC and examine the accused, if he
thinks necessary, and give an opportunity to the prosecution
and the accused of being heard. If on such consideration,
examination and hearing the Magistrate finds the charge
groundless he has to discharge the accused in terms of
Section 239 CrPC; conversely, if he finds that there is ground
for presuming that the accused has committed an offence
triable by him he has to frame a charge in terms of Section
240 CrPC.
State Anti-Corruption Bureau v. P. Suryaprakasam,
(2008) 14 SCC 13
9. In Stree Atyachar Virodhi Parishad v. Dilip Nathumal
Chordia3 the Court while examining the scope of Section 227
held as under: (SCC p. 721, para 14)
Section 227 itself contains enough guidelines as to the
scope of inquiry for the purpose of discharging an accused. It
provides that the judge shall discharge when he considers
accused. The ground in the context is not a ground for
conviction, but a ground for putting the accused on trial. It is
in the trial, the guilt or the innocence of the accused will be
determined and not at the time of framing of charge. The
court, therefore, need not undertake an elaborate inquiry in
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sifting and weighing the material. Nor is it necessary to
delve deep into various aspects. All that the court has to
consider is whether the evidentiary material on record, if
generally accepted, would reasonably connect the accused
with the crime.
Rajbir Singh v. State of U.P., (2006) 4 SCC 51
13. The question raised relating to recording of reasons at
the time of framing of charge is different from a case of
opinion on the basis of which an order of discharge of the
accused is passed. Sections 227 and 228 of the Code are
with regard to discharge of the accused and framing of
charges against the accused respectively in a case triable by
the Court of Session; Sections 239 and 240 concern
discharge and framing of charge in case of warrant, triable
by the Magistrate whereas Section 245 deals with discharge
and framing of charges in cases instituted other than on the
police
report,
indicates
the
difference.
The
relevant
provisions read as follows:

228. Framing of charge.(1) If, after such consideration and
hearing as aforesaid, the Judge is of opinion that there is
offence which
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
of warrant cases instituted on a police report;
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*
239. When accused shall be discharged.(1) If, upon

240. Framing of charge.(1) If, upon such consideration,
examination, if any, and hearing, the Magistrate is of opinion
committed an offence triable under this Chapter, which such
Magistrate is competent to try and which, in his opinion,
could be adequately punished by him, he shall frame in
(2) The charge shall then be read and explained to the
accused, and he shall be asked whether he pleads guilty of
the offence charged or claims to be tried.
*
245. When accused shall be discharged.(1) If, upon taking

all the evidence referred to in Section 244, the Magistrate
considers, for reasons to be recorded, that no case against
the accused has been made out which, if unrebutted, would
warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a
Magistrate from discharging the accused at any previous
stage of the case if, for reasons to be recorded by such
Magistrate, he considers the charge to be groundless.
14. This Court in State of Bihar v. Ramesh Singh11 observed
as follows: (SCC p. 41, para 4)
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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
15. In Kanti Bhadra Shah v. State of W.B.12 again the
question was examined. It was held that the moment the
order of discharge is passed it is imperative to record the
reasons. But for framing of charge the court is required to
form an opinion that there is ground for presuming that the
accused has committed the offence. In case of discharge of
the accused the use of the expression reasons has been
inserted in Sections 227, 239 and 245 of the Code. At the
stage of framing of a charge the expression used is
opinion. The reason is obvious. If the reasons are recorded
in case of framing of charge, there is likelihood of prejudicing
the case of the accused put on trial. It was inter alia held as
follows: (SCC pp. 725-26, paras 10-11)
10. It is pertinent to note that this section required a
Magistrate to record his reasons for discharging the accused
but there is no such requirement if he forms the opinion that
there is ground for presuming that the accused had
committed the offence which he is competent to try. In such
a situation he is only required to frame a charge in writing
against the accused.
11. Even in cases instituted otherwise than on a police report
the Magistrate is required to write an order showing the
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reasons only if he is to discharge the accused. This is clear

from Section 245. As per the first sub-section of Section 245,
if a Magistrate, after taking all the evidence considers that
no case against the accused has been made out which if
unrebutted would warrant his conviction, he shall discharge
the accused. As per sub-section (2) the Magistrate is
empowered to discharge the accused at any previous stage
of the case if he considers the charge to be groundless.
Under both sub-sections he is obliged to record his reasons
for doing so. In this context it is pertinent to point out that
even in a trial before a Court of Session, the Judge is
required to record reasons only if he decides to discharge
the accused (vide Section 227 of the Code). But if he is to
frame the charge he may do so without recording his
reasons for showing why he framed the charge.
16. But where the question of jurisdiction is raised and the
trial court is required to adjudicate that issue, it cannot be
said that reasons are not to be recorded. In such a case
reasons relate to question of jurisdiction and not necessarily
to the issue relating to framing of charge. In such a case
reasons dealing with a plea relating to jurisdiction have to be
recorded.
Lalu Prasad v. State of Bihar, (2007) 1 SCC 49
11. It is trite that at the stage of framing of charge 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, disclosed the existence
of all the ingredients constituting the alleged offence. At that
stage, the court is not expected to go deep into the
probative value of the material on record. What needs to be
considered is whether there is a ground for presuming that
the offence has been committed and not a ground for
convicting the accused has been made out. At that stage,
even strong suspicion founded on material which leads the
court to form a presumptive opinion as to the existence of
the factual ingredients constituting the offence alleged
would justify the framing of charge against the accused in
respect of the commission of that offence.
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12. In State of Karnataka v. L. Muniswamy1, a three-Judge

Bench of this Court had observed that at the stage of
framing the charge, the Court has to apply its mind to the
question whether or not there is any ground for presuming
the commission of the offence by the accused. As framing of
charge affects a persons liberty substantially, need for
proper consideration of material warranting such order was
emphasised.
13. Then again in State of Maharashtra v. Som Nath Thapa2,
a three-Judge Bench of this Court, after noting three pairs of
sections viz. (i) Sections 227 and 228 insofar as sessions trial
is concerned; (ii) Sections 239 and 240 relatable to trial of
warrant cases; and (iii) Sections 245(1) and (2) qua trial of
summons cases, which dealt with the question of framing of
charge or discharge, stated thus: (SCC p. 671, para 32)
32. if on the basis of materials on record, a court could
come to the conclusion that commission of the offence is a
probable consequence, a case for framing of charge exists.
To put it differently, if the court were to think that the
accused might have committed the offence it can frame the
charge, though for conviction the conclusion is required to
be that the accused has committed the offence. It is
apparent that at the stage of framing of a charge, probative
value of the materials on record cannot be gone into; the
materials brought on record by the prosecution has to be
accepted as true at that stage.
(emphasis in original)
14. In a later decision in State of M.P. v. Mohanlal Soni3 this
Court, referring to several previous decisions held that: (SCC
p. 342, para 7)
7. The crystallised judicial view is that at the stage of
framing charge, the court has to prima facie consider
accused. The court is not required to appreciate evidence to
conclude whether the materials produced are sufficient or
not for convicting the accused.
Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2
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SCC 561
9. It is beyond any doubt or dispute that at the stage of
framing of charge, the court will not weigh the evidence. The
stage for appreciating the evidence for the purpose of
arriving at a conclusion as to whether the prosecution was
able to bring home the charge against the accused or not
would arise only after all the evidence is brought on record
at the trial. The documents whereupon the appellant
intended to rely were: (i) an order of assessment passed by
the Income Tax Authority and (ii) his declaration of assets.
13. The learned counsel for CBI is, thus, correct in his
submission that what has been refused to be looked into by
the learned Special Judge related to the documents filed by
the appellant along with his application for discharge. The
court at the stage of framing charge exercises a limited
jurisdiction. It would only have to see as to whether a prima
facie case has been made out. Whether a case of probable
conviction for commission of an offence has been made out
on the basis of the materials found during investigation
should be the concern of the court. It, at that stage, would
not delve deep into the matter for the purpose of
appreciation of evidence. It would ordinarily not consider as
to whether the accused would be able to establish his
defence, if any.
14. In State of M.P. v. Mohanlal Soni1 this Court has held:
(SCC p. 342, para 7)
It was furthermore observed: (SCC p. 344, para 11)
11. As is evident from the paragraph extracted above if
proceeding further then a charge has to be framed. Per
contra, if the evidence which the prosecution proposes to
produce to prove the guilt of the accused, even if fully
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accepted before it is challenged by the cross-examination or
rebutted by the defence evidence, if any, cannot show that
the accused committed the particular offence then the
charge can be quashed.
We agree with the said view. See also State of Orissa v.
Debendra Nath Padhi2.
Hem Chand v. State of Jharkhand, (2008) 5 SCC 113
19. As observed in Debendra Nath Padhi case6 at the stage
of framing charge roving and fishing inquiry is impermissible
and a mini trial cannot be conducted at such stage. At the
stage of framing of charge the submissions on behalf of the
accused have to be confined to the material produced by the
investigating agency. The accused will get an opportunity to
prove
the
documents
subsequently
produced
by
the
prosecution on the order of the Court, but the same cannot

be relied upon to reopen the proceedings once charge has
been framed or for invocation of the High Court's powers
under Section 482 of the Code of Criminal Procedure.
Bharat Parikh v. Central Bureau of Investigation,
(2008) 10 SCC 109
15. Chapter XVIII of the Code lays down the procedure for
trial before the Court of Session, pursuant to an order of
commitment under Section 209 of the Code. Section 227
contemplates the circumstances whereunder there could be
a discharge of an accused at a stage anterior in point of time
to framing of charge under Section 228. It provides that
upon consideration of the record of the case, the documents
submitted with the police report and after hearing the
accused and the prosecution, the court is expected, nay
bound to decide whether there is sufficient ground to
proceed against the accused and as a consequence thereof
either discharge the accused or proceed to frame charge
against him.
16. It is trite that the words not sufficient ground for
proceeding against the accused appearing in the section
postulate exercise of judicial mind on the part of the Judge to
the facts of the case in order to determine whether a case
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for trial has been made out by the prosecution. However, in
assessing this fact, the Judge has the power to sift and weigh
the material 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 a prima facie case depends upon
the facts of each case and in this regard it is neither feasible
nor desirable 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
gives rise to suspicion only as distinguished from grave
suspicion, he will be fully within his right to discharge the
accused. At this stage, he is not to see as to whether the
trial will end in conviction or not. The broad test to be
applied is whether the materials on record, if unrebutted,
make a conviction reasonably possible. (See State of Bihar v.
Ramesh Singh2 and Prafulla Kumar Samal1.)
Yogesh v. State of Maharashtra, (2008) 10 SCC 394
10. In State of Maharashtra v. Som Nath Thapa1 this Court
observed as follows: (SCC p. 671, paras 31-32)
31. Let us note the meaning of the word presume. In
Blacks Law Dictionary it has been defined to mean to
believe or accept upon probable evidence. In Shorter Oxford
English Dictionary it has been mentioned that in law
presume means to take as proved until evidence to the
contrary is forthcoming. Strouds Legal Dictionary has
quoted in this context a certain judgment according to which
a presumption is a probable consequence drawn from facts
(either certain, or proved by direct testimony) as to the truth
of a fact alleged. In Law Lexicon by P. Ramanatha Aiyar the
same quotation finds place at p. 1007 of 1987 Edn.
32. The aforesaid shows that if on the basis of materials on
record,
court
could
come
to
the
conclusion
that
commission of the offence is a probable consequence, a

case for framing of charge exists. To put it differently, if the
court were to think that the accused might have committed
the offence it can frame the charge, though for conviction
the conclusion is required to be that the accused has
committed the offence. It is apparent that at the stage of
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framing of a charge, probative value of the materials on

record cannot be gone into; the materials brought on record
by the prosecution has to be accepted as true at that stage.
11. Sections 227, 239 and 245 deal with discharge from
criminal charge. In State of Karnataka v. L. Muniswamy2 it
was noted that at the stage of framing the charge the court
has to apply its mind to the question whether or not there is
any ground for presuming the commission of offence by the
accused. (underlined* for emphasis) The court has to see
while considering the question of framing the charge as to
whether the material brought on record could reasonably
connect the accused with the trial. Nothing more is required
to be inquired into. (See Stree Atyachar Virodhi Parishad v.
Dilip Nathumal Chordia3 and State of W.B. v. Mohd. Khalid4.)
12. In R.S. Nayak v. A.R. Antulay5 this Court referred to
Sections 227 and 228 so far as they are relatable to trial.
Sections 239 and 240 are relatable to trial of warrant cases
and Sections 245(1) and (2) are relatable to summons cases.
13. After analysing the terminology used in the three pairs
of sections it was held (in Antulay case5) that despite the
differences there is no scope for doubt that at the stage at
which the court is required to consider the question of
framing of charge, the test of a prima facie case is to be
applied.
Sanghi Bros. (Indore) (P) Ltd. v. Sanjay Choudhary,
(2008) 10 SCC 681
25. It is trite that at the stage of framing of charge, the court
therefrom, taken at their face value, disclose the existence
of all the ingredients constituting the alleged offence or
offences. For this limited purpose, the court may sift the
evidence as it cannot be expected even at the initial stage to
accept as gospel truth all that the prosecution states. At this
stage, the court has to consider the material only with a
view to find out if there is ground for presuming that the
Sl.
CHARGE OR DISCHARGE
No.
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th
accused has committed an offence and not for the purpose

of arriving at the conclusion that it is not likely to lead to a
conviction. (See Niranjan Singh Karam Singh Punjabi v.
Jitendra Bhimraj Bijjaya5.)
26. In Som Nath Thapa2 a three-Judge Bench of this Court
explained the meaning of the word presume. Referring to
dictionary meanings of the said word, the Court observed
thus: (SCC p. 671, para 32)
accused might have** committed the offence it can frame
the charge, though for conviction the conclusion is required
to be that the accused has committed the offence. It is
(emphasis supplied)
Chitresh Kumar Chopra v. State (NCT of Delhi), (2009)
16 SCC 605
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:
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
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CHARGE OR DISCHARGE
No.
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th
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.
12. The scope of Section 227 of the Code was considered by
this Court in State of Bihar v. Ramesh Singh1, wherein this
Court observed as follows: (SCC pp. 41-42, para 4)
4. 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 cross-examination or
the accused committed the offence, then there will be no
sufficient ground for proceeding with the trial.
Sl.
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No.
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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 the trial Judge in order to
frame a charge against the accused.
13. In a subsequent decision i.e. in Union of India v. Prafulla
Kumar Samal2, this Court after adverting to the conditions
enumerated in Section 227 of the Code and other decisions
of this Court, enunciated the following principles: (SCC p. 9,
para 10)
case against the accused has been made out.
evidence and the documents produced before the Court, any
14. The scope and ambit of Section 227 was again
considered in Niranjan Singh Karam Singh Punjabi v. Jitendra
Bhimraj Bijjaya3, in para 6 this Court held that: (SCC pp. 83-
Sl.
CHARGE OR DISCHARGE
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th
84)
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 Singh1 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 cross-examination or
the accused committed the offence, then there will be no
sufficient ground for proceeding with the trial. In Union of
India v. Prafulla Kumar Samal2 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
Sl.
CHARGE OR DISCHARGE
No.
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th
may evaluate the material to find out if the facts emerging

therefrom taken at their face value establish the ingredients
constituting the said offence.
15. In a recent decision, in Soma Chakravarty v. State4, this
Court has held that: (SCC p. 403d-f)
The settled legal position is that if on the basis of material
on record the court could form an opinion that the accused
might have committed the 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 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. Whether, in fact, the accused
committed the offence, can only be decided in the trial.
(Para 10)
*
Charge may although be directed to be framed when there

exists a strong suspicion but it is also trite that the court
must come to a prima facie finding that there exist some
materials therefor. Suspicion alone, without anything more,
cannot form the basis therefor or held to be sufficient for
framing charge.
(Para 19)
P. Vijayan v. State of Kerala, (2010) 2 SCC 398
It is clear that the Judge concerned has to consider all the
records of the case, the documents placed, hear the
submission of the accused and the prosecution and if there
is not sufficient ground (emphasis supplied) for proceeding
against the accused, he shall discharge the accused by
recording reasons. If after such consideration and hearing, as
mentioned in Section 227, if the Judge is of the opinion that
there is ground for presuming (emphasis supplied) that the
accused has committed an offence, he is free to direct the
Sl.
CHARGE OR DISCHARGE
No.
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accused to appear and try the offence in accordance with

the procedure after framing charge in writing against the
accused.
17. In Prafulla Kumar Samal1 the scope of Section 227 CrPC
was considered. After adverting to various decisions, this
Court has enumerated the following principles: (SCC p. 9,
para 10)
18. In Dilawar Balu Kurane2, the principles enunciated in
Prafulla Kumar Samal1 have been reiterated and it was held:
(Dilawar Balu Kurane case2, SCC pp. 140-41, paras 12 & 14)
12. Now the next question is whether a prima facie case
has been made out against the appellant. In exercising
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powers under Section 227 of the Code of Criminal Procedure,
the settled position of law is that the Judge while considering
the question of framing the charges under the said section
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; 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; by and large 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
justified
to
discharge the
accused, and in
exercising
jurisdiction under Section 227 of the Code of Criminal

Procedure, the Judge cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the
evidence and the documents produced before the court but
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 (see Union of India v. Prafulla Kumar Samal1).
*
14. We have perused the records and we agree with the

above views expressed by the High Court. We find that in the
alleged trap no police agency was involved; the FIR was
lodged after seven days; no incriminating articles were found
in the possession of the accused and statements of
witnesses were recorded by the police after ten months of
the occurrence. We are, therefore, of the opinion that not to
speak of grave suspicion against the accused, in fact the
prosecution has not been able to throw any suspicion. We,
therefore, hold that no prima facie case was made against
the appellant.
19. It is clear that 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
Sl.
CHARGE OR DISCHARGE
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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 only for the purpose of deciding prima
facie whether the court should proceed with the trial or not.
If the evidence which the prosecution proposes to adduce
proves the guilt of the accused even if fully accepted before
it is challenged in 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.
20. A Magistrate enquiring into a case under Section 209
CrPC 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 CrPC,
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 and 228
CrPC
21. 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 CrPC 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
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No.
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properly explained, the court will be fully justified in framing
(iii) The 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, etc. However, at this stage, there cannot be a
roving enquiry into the pros and cons of the matter and
weigh 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 face 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.
Sajjan Kumar v. Central Bureau of Investigation,
(2010) 9 SCC 368
Consideration
20. We have noted the submissions of both the counsel. We
Sl.
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are concerned with the role of the Judge at the stage of

framing of a charge. The provision concerning the framing of
a charge is to be found in Section 228 CrPC. This section is,
however, connected with the previous section i.e. Section
227 which is concerning Discharge. These two sections
read as follows:
227. Discharge.If, upon consideration of the record of
the case and the documents submitted therewith, and after
228. Framing of charge.(1) If, after such consideration
and hearing as aforesaid, the Judge is of opinion that there is
offence which
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
of warrant cases instituted on a police report;
21. As seen from Section 227 above, while discharging an
accused, the Judge concerned has to consider the record of
the case and the documents placed therewith, and if he is so
convinced after hearing both the parties that there is no
sufficient ground to proceed against the accused, he shall
discharge the accused, but he has to record his reasons for
doing the same. Section 228 which deals with framing of the
Sl.
CHARGE OR DISCHARGE
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No.
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charge, begins with the words If, after such consideration.
Thus, these words in Section 228 refer to the consideration
under Section 227 which has to be after taking into account
the record of the case and the documents submitted
therewith. These words provide an interconnection between
Sections 227 and 228. That being so, while Section 227
provides for recording the reasons for discharging an
accused, although it is not so specifically stated in Section
228, it can certainly be said that when the charge under a
particular section is dropped or diluted (although the
accused is not discharged), some minimum reasons in a
nutshell
are
expected
to
be
recorded
disclosing
the
consideration of the material on record. This is because the

charge is to be framed after such consideration and
therefore, that consideration must be reflected in the order.
22. It is also to be noted that a discharge order is passed on
an application by the accused on which the accused and the
prosecution are heard. At the stage of discharging an
accused or framing of the charge, the victim does not
participate in the proceeding. While framing the charge, the
rights of the victim are also to be taken care of as also that
of the accused. That responsibility lies on the shoulders of
the Judge. Therefore, on the analogy of a discharge order,
the Judge must give his reasons at least in a nutshell, if he is
dropping or diluting any charge, particularly a serious one as
in the present case. It is also necessary for the reason that
the order should inform the prosecution as to what went
wrong with the investigation. Besides, if the matter is carried
to the higher court, it will be able to know as to why a
charge was dropped or diluted.
23. The observations of this Court in State of Bihar v.
Ramesh Singh4 are very apt in this behalf. A Bench of two
Judges of this Court has observed in that matter 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. The
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CHARGE OR DISCHARGE
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No.
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th
Court referred to the judgment of a Bench of three Judges in
Nirmaljit Singh Hoon v. State of W.B.5, which in turn referred
to an earlier judgment of a Bench of four Judges in Chandra
Deo Singh v. Prokash Chandra Bose6 and observed as
follows in SCC para 5: (Ramesh Singh case4, SCC p. 42)
5. In Nirmaljit Singh Hoon v. State of W.B.5Shelat, J.
delivering the judgment on behalf of the majority of the
Court referred at SCC pp. 762-63 : SCR p. 79 of the Report to
the earlier decisions of this Court in Chandra Deo Singh v.
Prokash Chandra Bose6where 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 (Nirmaljit case5, SCC p. 763, para 22).
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.
(emphasis supplied)
24. Further, as observed later in SCC para 6 of a subsequent
judgment of this Court in Niranjan Singh Karam Singh
Punjabi v. Jitendra Bhimraj Bijjaya7, at the stage of the
framing of the charge, the Judge is expected to sift the
evidence for the limited purpose to decide if the facts
emerging from the record and documents constitute the
offence with which the accused is charged. This must be
reflected in the order of the Judge.
25. Thus, it cannot be disputed that in this process the
minimum that is expected from the Judge is to look into the
material placed before him and if he is of the view that no
Sl.
CHARGE OR DISCHARGE
No.
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case was made out for framing of a charge, the order ought
to be clear and self-explanatory with respect to the material
placed before him..........................................
R.S. Mishra v. State of Orissa, (2011) 2 SCC 689
19. At the initial stage of framing of a charge, the court is
concerned not with proof but with a strong suspicion that the
accused has committed an offence, which, if put to trial,
could prove him guilty. All that the court has to see is that
the material on record and the facts would be compatible
with the innocence of the accused or not. The final test of
guilt is not to be applied at that stage. We may refer to the
well-settled law laid down by this Court in State of Bihar v.
Ramesh Singh6: (SCC pp.
41-42, para 4)
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 considers that there is no sufficient
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
Sl.
CHARGE OR DISCHARGE
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No.
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th
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
committed an offence then it is not open to the court to say
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 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.
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
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CHARGE OR DISCHARGE
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228 and not under Section 227.

30. We have already noticed that the legislature in its
wisdom has used the expression there is ground for
presuming that the accused has committed an offence. This
has an inbuilt element of presumption once the ingredients
of an offence with reference to the allegations made are
satisfied, the Court would not doubt the case of the
prosecution unduly and extend its jurisdiction to quash the
charge in haste. A Bench of this Court in State of
Maharashtra v. Som Nath Thapa31 referred to the meaning
of the word presume while relying upon Blacks Law
Dictionary. It was defined to mean to believe or accept
upon probable evidence; to take as proved until evidence
to the contrary is forthcoming. In other words, the truth of
the matter has to come out when the prosecution evidence
is led, the witnesses are cross-examined by the defence, the
incriminating material and evidence is put to the accused in
terms of Section 313 of the Code and then the accused is
provided an opportunity to lead defence, if any. It is only
upon completion of such steps that the trial concludes with
the court forming its final opinion and delivering its
judgment. Merely because there was a civil transaction
between the parties would not by itself alter the status of
the allegations constituting the criminal offence.
Amit Kapoor v. Ramesh Chander,(2012) 9 SCC 460
14. The High Court in exercise of its powers under Section
482 CrPC does not function as a court of appeal or revision.
This Court has, in several judgments, held that the inherent
jurisdiction under Section 482 CrPC, though wide, has to be
used sparingly, carefully and with caution. The High Court,
under Section 482 CrPC, should normally refrain from giving
a prima facie decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has not
been collected and produced before the Court and the issues
involved, whether factual or legal, are of wide magnitude
and cannot be seen in their true perspective without
sufficient material.
Sl.
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15. In M.M.T.C. Ltd. v. Medchl Chemicals & Pharma (P) Ltd.2

this Court held as follows: (SCC p. 236)
The law is well settled that the power of quashing criminal
proceedings should be exercised very stringently and with
circumspection. It is settled law that at this stage the Court
is not justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations
made in the complaint. The inherent powers do not confer
an arbitrary jurisdiction on the court to act according to its
whim or caprice.
16. In State of Orissa v. Saroj Kumar Sahoo3 this Court held
as follows: (SCC p. 547, para 8)
8. Exercise of power under Section 482 CrPC in a case of
this nature is the exception and not the rule. The section
does not confer any new powers on the High Court. It only
saves the inherent power which the Court possessed before
the enactment of CrPC. It envisages three circumstances
under which the inherent jurisdiction may be exercised,
namely, (i) to give effect to an order under CrPC, (ii) to
prevent abuse of the process of court, and (iii) to otherwise
secure the ends of justice. It is neither possible nor desirable
to lay down any inflexible rule which would govern the
exercise of inherent jurisdiction. No legislative enactment
dealing with procedure can provide for all cases that may
possibly arise. The courts, therefore, have inherent powers
apart from express provisions of law which are necessary for
proper discharge of functions and duties imposed upon them
by law. That is the doctrine which finds expression in the
section which merely recognises and preserves inherent
powers of the High Courts. All courts, whether civil or
criminal possess, in the absence of any express provision, as
inherent in their constitution, all such powers as are
necessary to do the right and to undo a wrong in the course
of administration of justice on the principle quando lex
aliquid alicui concedit, concedere videtur id sine quo res ipsa
esse non potest (when the law gives a person anything, it
gives him that without which it cannot exist). While
exercising the powers under the section, the court does not
Sl.
CHARGE OR DISCHARGE
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No.
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function as a court of appeal or revision.
Inherent
jurisdiction under the section, though wide, has to be

exercised sparingly, carefully and with caution and only
when such exercise is justified by the tests specifically laid
down in the section itself.
This Court, again, in Eicher Tractor Ltd. v. Harihar Singh4,
held as follows: (SCC p. 766, para 13)
13. 8. When exercising jurisdiction under Section 482
of the Code, the High Court would not ordinarily embark
upon an enquiry whether the evidence in question is reliable
or not or whether on a reasonable appreciation of it
accusation would not be sustained. That is the function of
the trial Judge.*
State of M.P. v. Surendra Kori, (2012) 10 SCC 155
12. The case at hand being a warrant case is governed by
Section 239 CrPC for purposes of determining whether the
accused or any one of them deserved to be discharged.
Section 239 is as under:
239. When accused shall be discharged.If, upon
A plain reading of the above would show that the court
trying the case can direct discharge only for reasons to be
recorded by it and only if it considers the charge against the
accused to be groundless.
13. Section 240 of the Code provides for framing of a charge
if,
upon
consideration
of
the
police
report
and
the
documents sent therewith and making such examination, if

any, of the accused as the Magistrate thinks necessary, the
Magistrate is of the opinion that there is ground for
presuming that the accused has committed an offence
triable
under
Chapter
XIX,
which
such
Magistrate
is
Sl.
CHARGE OR DISCHARGE
No.
Bench
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th
competent to try and which can be adequately punished by

him.
14. The ambit of Section 239 CrPC and the approach to be
adopted by the Court while exercising the powers vested in
it under the said provision fell for consideration of this Court
in Onkar Nath Mishra v. State (NCT of Delhi)7. That too was a
case in which a complaint under Sections 498-A and 406
read with Section 34 IPC was filed against the husband and
parents-in-law of the complainant wife. The Magistrate had
in that case discharged the accused under Section 239 CrPC,
holding that the charge was groundless. The complainant
questioned that order before the Revisional Court which
directed the trial court to frame charges against the accused
persons. The High Court having affirmed that order, the
matter was brought up to this Court.
15. This Court partly allowed the appeal qua the parents-inlaw while dismissing the same qua the husband. This Court
explained the legal position and the approach to be adopted
by the court at the stage of framing of charges or directing
discharge in the following words: (Onkar Nath case7, SCC p.
565, para 11)
11. It is trite that at the stage of framing of charge the court
therefrom, taken at their face value, disclosed the existence
of all the ingredients constituting the alleged offence. At that
stage, the court is not expected to go deep into the
probative value of the material on record. What needs to be
considered is whether there is a ground for presuming that
the offence has been committed and not a ground for
convicting the accused has been made out. At that stage,
even strong suspicion founded on material which leads
the court to form a presumptive opinion as to the existence
of the factual ingredients constituting the offence alleged
would justify the framing of charge against the accused in
respect of the commission of that offence.
(emphasis supplied)
16. Support for the above view was drawn by this Court from
Sl.
CHARGE OR DISCHARGE
No.
Bench
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the earlier decisions rendered in State of Karnataka v. L.

Muniswamy10, State of Maharashtra v. Som Nath Thapa11
and State of M.P. v. Mohanlal Soni12. In Som Nath case11
the legal position was summed up as under: (SCC p. 671,
para 32)
accused might have* committed the offence it can frame the
charge, though for conviction the conclusion is required to
be that the accused has* committed the offence. It is
(emphasis supplied)
17. So also in Mohanlal case212 this Court referred to

several previous decisions and held that the judicial opinion
regarding the approach to be adopted for framing of charge
is that such charges should be framed if the court prima
facie finds that there is sufficient ground for proceeding
against the accused. The court is not required to appreciate
evidence as if to determine whether the material produced
was sufficient to convict the accused. The following passage
from the decision in Mohanlal case12 is in this regard
apposite: (SCC p. 342, para 7)
18. In State of Orissa v. Debendra Nath Padhi6 this Court
was considering whether the trial court can at the time of
framing of charges consider material filed by the accused.
The question was answered in the negative by this Court in
the following words: (SCC pp.
23)
577 & 579, paras 18 &
Sl.
CHARGE OR DISCHARGE
No.
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th
18. We are unable to accept the aforesaid contention. The

reliance on Articles 14 and 21 is misplaced. ... Further, at the
stage of framing of charge roving and fishing inquiry is
impermissible. If the contention of the accused is accepted,
there would be a mini-trial at the stage of framing of charge.
That would defeat the object of the Code. It is well settled
that at the stage of framing of charge the defence of the
accused cannot be put forth. The acceptance of the
contention of the learned counsel for the accused would
mean permitting the accused to adduce his defence at the
stage of framing of charge and for examination thereof at
that stage which is against the criminal jurisprudence. By
way of illustration, it may be noted that the plea of alibi
taken by the accused may have to be examined at the stage
of framing of charge if the contention of the accused is
accepted despite the well-settled proposition that it is for
the accused to lead evidence at the trial to sustain such a
plea. The accused would be entitled to produce materials
and documents in proof of such a plea at the stage of
framing of the charge, in case we accept the contention put
forth on behalf of the accused. That has never been the
intention of the law well settled for over one hundred years
now. It is in this light that the provision about hearing the
submissions of the accused as postulated by Section 227 is
to be understood. It only means hearing the submissions of
the accused on the record of the case as filed by the
prosecution and documents submitted therewith and nothing
more. The expression hearing the submissions of the
accused cannot mean opportunity to file material to be
granted to the accused and thereby changing the settled
law. At the state of framing of charge hearing the
submissions of the accused has to be confined to the
material produced by the police.
*
23. As a result of aforesaid discussion, in our view, clearly

the law is that at the time of framing charge or taking
cognizance the accused has no right to produce any
material. (emphasis supplied)
Sl.
CHARGE OR DISCHARGE
No.
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19. Even in Rumi Dhar v. State of W.B.9, reliance whereupon

was placed by the counsel for the appellants, the tests to be
applied at the stage of discharge of the accused person
under Section 239 CrPC were found to be no different. Far
from readily encouraging discharge, the Court held that even
a strong suspicion in regard to the commission of the offence
would be sufficient to justify framing of charges. The Court
observed: (SCC p.
369, para 17)
17. ... While considering an application for discharge filed in

terms of Section 239 of the Code, it was for the learned
Judge to go into the details of the allegations made against
each of the accused persons so as to form an opinion as to
whether any case at all has been made out or not as a
strong suspicion in regard thereto shall subserve the
requirements of law.
20. To the same effect is the decision of this Court in Union
of India v. Prafulla Kumar Samal4 where this Court was
examining a similar question in the context of Section 227 of
the Code of Criminal Procedure. The legal position was
summed up as under: (SCC p.
9, para 10)
10. Thus, on a consideration of the authorities mentioned

above, the following principles emerge:
Sl.
CHARGE OR DISCHARGE
Bench
No.
Streng
th
and experienced Judge cannot act merely as a post office or
Sheoraj Singh Ahlawat v. State of U.P.,(2013) 11 SCC
476
LIST OF JUDGMENTS
1. Amit Kapoor v. Ramesh Chander
(2012) 9 SCC
460
2. Bharat Parikh v. Central Bureau of

Investigation
(2008) 10
SCC 109
3. Hem Chand v. State of Jharkhand
(2008) 5 SCC
113
4. Kanti Bhadra Shah v. State of W.B.
(2000) 1 SCC
722
5. Lalu Prasad v. State of Bihar
(2007) 1 SCC
49
6. Om Parkash Sharma v. CBI, Delhi
(2000) 5 SCC
7. P. Vijayan v. State of Kerala
679
(2010) 2 SCC
398
8. R.S. Mishra v. State of Orissa
(2011) 2 SCC
689
9. Sajjan Kumar v. Central Bureau of

Investigation
(2010) 9 SCC
368
10.Sheoraj Singh Ahlawat v. State of U.P.
(2013) 11
SCC 476
(2000) 8 SCC
239
(2000) 2 SCC
57
(2012) 10
SCC 155
11.State of Delhi v. Gyan Devi

12.State of M.P. v. S.B. Johari
13.State of M.P. v. Surendra Kori
Sl.
CHARGE OR DISCHARGE
Bench
No.
Streng
th
14.State of Maharashtra v. Priya Sharan

Maharaj
15.State of Orissa v. Debendra Nath Padhi
16.Stree Atyachar Virodhi Parishad v. Dilip
Nathumal Chordia
17.Yogesh v. State of Maharashtra
(1997) 4 SCC
393
(2005) 1 SCC
568
(1989) 1 SCC
715
(2008) 10
SCC 394
18.
GROUNDS PREVIOUSLY TAKEN BY LITIGANTS
REPLY TO GROUNDS PREVIOUSLY TAKEN BY LITIGANTS

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Sl.

11. Section 227 of the Code of Criminal Procedure having

that there is no sufficient ground for proceeding against the

consistently been held by this Court that at the time of

investigating agency along with the charge-sheet. Any

the evidence as it cannot be expected even at that initial

9. The said section shows that the Magistrate is obliged to

appreciate if such a detailed order has been passed for

proposes to adduce to prove the guilt of the accused, even if

stage at which there could be a discharge of the person

Kumar Samal3. Ultimately, this

depend upon the facts of each case and it would be difficult

materials by the court is not required. This Court further

supported; firstly, because finding regarding commission of

charge can be quashed if the evidence which the prosecutor

material placed before it by the investigating agency, there

Magistrates, instituted on a police report, Sections 239 and

protracted criminal trial. It is calculated to eliminate

materials gathered after investigation fall short of minimum

committing him for trial, as provided in sub-section (6) and

change brought out in the Code is also required to be kept in

proposes to adduce to prove the guilt of the accused, even if

had commenced was reversed by this Court. It may be

material produced by the police.

observations cannot be understood to mean that the

explanation and the materials produced by the accused and

prerogative of the court only. Though, in view of the clear

in the instant case and

cognizance taken, were triable as a warrant case the

provisions read as follows:

(b) is exclusively triable by the court, he shall frame in

239. When accused shall be discharged.(1) If, upon

245. When accused shall be discharged.(1) If, upon taking

Reading the two provisions together in juxtaposition, as

reasons only if he is to discharge the accused. This is clear

12. In State of Karnataka v. L. Muniswamy1, a three-Judge

prosecution on the order of the Court, but the same cannot

commission of the offence is a probable consequence, a

framing of a charge, probative value of the materials on

accused has committed an offence and not for the purpose

prosecution. In State of Bihar v. Ramesh Singh1 this Court

may evaluate the material to find out if the facts emerging

Charge may although be directed to be framed when there

accused to appear and try the offence in accordance with

jurisdiction under Section 227 of the Code of Criminal

14. We have perused the records and we agree with the

commitment of the accused to the Court of Session. He is

commitment, and not whether there is sufficient evidence

grave suspicion against the accused which has not been

are concerned with the role of the Judge at the stage of

consideration of the material on record. This is because the

untrustworthy, process cannot be refused if that evidence

circumstances to indicate as to what will lead to one

228 and not under Section 227.

15. In M.M.T.C. Ltd. v. Medchl Chemicals & Pharma (P) Ltd.2

jurisdiction under the section, though wide, has to be

documents sent therewith and making such examination, if

competent to try and which can be adequately punished by

the earlier decisions rendered in State of Karnataka v. L.

17. So also in Mohanlal case212 this Court referred to

577 & 579, paras 18 &

18. We are unable to accept the aforesaid contention. The

23. As a result of aforesaid discussion, in our view, clearly