M. B. SHAH, J. ( 1 ) THE respondent No. 1 along with other accused was charged for the offence punishable under section 135 of the Customs Act 1962 on the allegation that in pursuance of conspiracy prohibited articles such as wrist watches foreign cloth foreign fountain-pens and other articles were brought and was in any way concerned in carrying removing depositing harbouring keeping concealing selling or purchasing or in any other manner dealing with such prohibited goods which he knew or had reason to believe were liable to confiscation under section 111 of the Customs Act and for the offences punishable under section 13 (1) of the Foreign Exchange Regulation Act 1973 and section 5 of the Import and Export Control Act read with section 120-B of the Indian Penal Code by the Chief Judicial Magistrate Amreli in Criminal Case No. 1061 of 1979. ( 2 ) AGAINST the said order of the learned Chief Judicial Magistrate Amreli framing charge against the respondent No. 1 and other accused respondent No. 1 had preferred Criminal Revision Application No. 35/82 before the Sessions Judge Amreli. The other accused had also preferred Criminal Revision Applications Nos. 30/82 and 39/82. I am not concerned with these two Revision Applications by the other accused as the said Revision Applicaions are dismissed by the learned Sessions Judge. The learned Sessions Judge by his judgment and order dated 11/05/1983 allowed the Revision Application filed by respondent No. 1 by holding that in view of section 245 of the Criminal Procedure Code the respondent No. 1 was required to be discharged because the evidence as it stood even if uncontroverted would not warrant his conviction. Against the said order of discharge the petitioner has preferred this Special Criminal Application. ( 3 ) BEFORE the learned Sessions Judge it was admitted that charge under section 13 (1) of the Foreign Exchange Regulation Act 1973 and section 5 of the Imports and Exports (Control) Act 1947 cannot be framed as no sanction was obtained for prosecuting the respondent No. 1. It is an admitted fact on record that no sanction to prosecute respondent No. 1 was obtained and therefore charge for the said offences could not be framed. Against that order no grievance is also made by the petitioner. It is an admitted fact on record that no sanction to prosecute respondent No. 1 was obtained and therefore charge for the said offences could not be framed. Against that order no grievance is also made by the petitioner. ( 4 ) THE learned counsel for the petitioner however vehemently contended that the judgment and order passed by the learned Sessions Judge is on the face of it illegal because at the time of framing of charge the learned Magistrate is not required to consider the prosecution case meticulously and appreciate the evidence as if he is deciding the matter. He further submitted that at present the prosecution has led evidence which prima facie shows that respondent No. 1 can be convicted by the Court. According to his submission the evidence against the respondent No. 1 is of two-fold nature - (1) circumstantial evidence and (2) evidence in the form of statements of the co-accused recorded under section 108 of the Customs Act. The said statements of coaccused in terms involve the respondent No. 1 in the offence. ( 5 ) AS against this the learned counsel for the respondent No. 1 submitted that the statement of co-accused cannot be the basis for conviction and it can be relied upon only for lending assurance to the conclusion arrived at by the Court. He further submitted that against the present respondent No. 1 there is no substantive evidence on record which would implicate him in the offence. If the evidence which is recorded by the learned Magistrate is taken as it is no judicial Court would be in a position to write the judgment of conviction against the respondent No. 1. The alleged circumstantial evidence against the respondent No. 1 nowhere shows that the respondent No. 1 was involved in the alleged offence. ( 6 ) THE learned counsel for the petitioner relied upon the following circumstantial evidence to show prima facie case against the respondent No. 1: (1) Respondent No. 1 is the owner of Chanch-Bungalow. (2) His financial position was weak. He was not able to repay the loans taken from several persons and there was pressure from creditors for repayment of loan. (3) Respondent No. 1 meets one Haji Saheb Hasambhai and Mukundbhai Chimanlal Shah at Bombay in March 1978. (2) His financial position was weak. He was not able to repay the loans taken from several persons and there was pressure from creditors for repayment of loan. (3) Respondent No. 1 meets one Haji Saheb Hasambhai and Mukundbhai Chimanlal Shah at Bombay in March 1978. (4) In April 1978 original accused No. 2 came to Bhavnagar from Bombay accompanied by accused No. 6 Mastikhan Aliyarkhan Baloch resident of Bhavnagar and went to Chanch-Bungalow. Information about the proposed visit of accused No. 2 to Chanch Bungalow was conveyed from Bombay by trunk call. There is no direct evidence to show that talk took place on telephone but the statements of the co-accused recorded under sec. 108 of the Customs Act which are relevant under sec. 138-B of the Customs Act prove the said conversation. Witness Prahladbhai who is examined at Ex. 159 proves that respondent No. 1 was having at his Bombay residence the telephone having No. 578732 Shripad Ex. 198 proves telephone call to Bhavnagar (5) Respondent No. 1 remained in Bhavnagar from 7-5-78 to 16-5-78. In his statement recorded under sec. 108 of the Customs Act he admits that accused No. 3 had a telephonic talk with him on 10-5-78 and 11 The telephonic call to Maharaja is proved by the evidence of Shripad at Ex. 198 and telephonic talk of accused No. 3 is proved by P. W. 13 Prahladbhai Ex. 159. (6) Several meetings between respondent No. 1 and accused Nos. 2 and 6 and on some occasions with accused No. 7 took place on 12-5-78 and 13 at Bhavnagar. For this the statement of respondent No. 1 recorded under sec. 108 has been relied upon. (7) Respondent No. 1 had a telephonic talk with accused No. 4. (8) Telephone No. 40596 of accused No. 4 is proved by P. W. 14 Pranjivan. The nature of the call is no delay call for a minute. (9) Respondent No. 1 had a talk with accused No. 7 Bhagwatsingh Jadeja who was at Talaja. The talk took place at about 10-21 hours on 14 (10) Accused Nos. 4 and 5 came to Bhavnagar from Ahmedabad in a Fiat Car No. GTL 9284 belonging to accused No. 4 driven by driver Farid Mansuri. They stayed at the residence of respondent No. 1 in Neelam Baug. This is admitted by respondent No. 1 in his statement. The talk took place at about 10-21 hours on 14 (10) Accused Nos. 4 and 5 came to Bhavnagar from Ahmedabad in a Fiat Car No. GTL 9284 belonging to accused No. 4 driven by driver Farid Mansuri. They stayed at the residence of respondent No. 1 in Neelam Baug. This is admitted by respondent No. 1 in his statement. There is also evidence of P. W. 21 the driver of the Fiat car. P. W. 6 states that the said car was noticed by him at Victor Port. The evidence of Faridkhan P. W. 21 driver of the car proves that he drove the car of accused No. 4 and took accused Nos. 4 and 5 to the residence of Mastikhan Baloch accused No. 6 from Neelambaug Palace in the evening time on 14-5-78 and that accused Nos. 4 and 5 went inside the house of Mastikhan. After sometime accused Nos. 4 and 5 came out of the said house alongwith accused No. 2 and another person. He drove the said car and took aforesaid four persons to Talaja where they met accused No. 7 Bhagwatsingh. Thereafter accused Nos. 2 7 and 8 went to Chanch Bungalow. (11) From Chanch Bungalow accused No. 2 in presence of accused Nos. 7 and 8 gave torch light signals towards the sea at a regular interval for a period of half an hour at the expected time of arrival of ship carrying smuggled goods which had been intercepted at Veraval. The Launch named Al Kausar was intercepted while going towards the direction of Chanch Bungalow. (12) P. W. 27 Abhal deposes that on the first day two guests of Bapu (respondent No. 1) alongwith accused No. 7 had put up at Chanch Bungalow. Accused No. 7 had introduced the said two persons to him as guests of Bapu. He deposes that one of those two persons had beard (accused No. 2 was having beard ). He admits that these two persons were present in the Chanch Bungalow when the Custom Officers came there for enquiry. Custom Superintendent of Mahuva Shri A. D. Lalbeg deposes that on 16 when he went at Chanch Bungalow accused Nos. 2 and 8 who initially gave false names were there. (13) Respondent No. 1 had a talk with accused No. 3 on 13-5-78 15 and 16-5-78. Trunk calls are proved by P. W. 22 Shripad. Custom Superintendent of Mahuva Shri A. D. Lalbeg deposes that on 16 when he went at Chanch Bungalow accused Nos. 2 and 8 who initially gave false names were there. (13) Respondent No. 1 had a talk with accused No. 3 on 13-5-78 15 and 16-5-78. Trunk calls are proved by P. W. 22 Shripad. (14) On 16-5-78 when Custom Officers visited Chanch Bungalow and thereafter visited respondent No. 1s residence and made certain enquiries respondent No. 1 suddenly left Bhavnagar with his driver accused No. 6 and went to Ahmedabad where he stayed at Cama Hotel. (15) On 17-5-78 respondent No. 1 had a telephonic talk with accused No. 3 at his Bombay phone No. 578732. This is admitted by the respondent No. 1 in his statement. (16) Witness Rama Bhura states that 3 days before 19-5-78 he had transported through his ferry-boat some guests of Maharaja (respondent No. 1) of whom one person was haling beard. (17) P. W. 19 Pyarali Isabhai states that on 5-4-78 accused No. 6 (who is the driver of respondent No. 1) told him that their guests have arrived and they have to go to Victor Port. They have to be carried from the Airport as they had to reach Bhavnagar from Bombay by the flight scheduled to arrive at Bhavnagar at 10-20 p. m. Two guests were picked up from the Airport and accused No. 6 took them to Port Victor. Out of the two guests one was accused No. 2 and the second was not seen in the Court. He has also admitted that before the Customs Officers he had informed that from Port Victor these two persons went to Chanch Bungalow by boat. (18) Respondent No. 1 admits the visit of Haji Saheb (accused No. 2) twice at his bungalow at Bombay in the end of March 1978. It is his his say that the accused No. 2 wanted to purchase Chanch Bungalow therefore accused No. 2 had contacted him. This story is inherently improbable because accused No. 2 who is a Pakistani National cannot purchase the bungalow. So he has given false explanation. ( 7 ) HE further submitted that apart from the aforesaid circumstantial evidence there are statements of co-accused recorded by the Custom Officer under sec. This story is inherently improbable because accused No. 2 who is a Pakistani National cannot purchase the bungalow. So he has given false explanation. ( 7 ) HE further submitted that apart from the aforesaid circumstantial evidence there are statements of co-accused recorded by the Custom Officer under sec. 108 of the Customs Act which clearly show that the respondent No. 1 is involved in the offence alleged against him and therefore the order passed by the learned Sessions Judge discharging respondent No. 1 is on the face of it illegal. ( 8 ) OR warrant trial cases instituted otherwise than on police report sec. 244 of the Code provides that the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Secs. 245 and 246 provide for discharge of the accused or framing of the charge against the accused. The relevant sub-sections of secs. 245 and 246 are as under:245 (1) If upon taking all the evidence referred to in sec. 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) xxx xxx xxx246 (1) If when such evidence has been taken or at any previous stage of the case the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence trial 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) x x x x x (Emphasis added)SEC. 246 (1) empowers the Magistrate to frame the charge if he is of the opinion that there is ground for presuming that the accused has committed an offence. He can frame the charge even before recording the evidence or after recording the evidence. Sec. 246 emphasizes upon the opinion which may be formed by the Magistrate that there is ground for presuming that the accused has committed an offence. Sec. 245 (1) deals with those cases where after recording the evidence if the Magistrate considers that no case against the accused has been made out which if unrebutted would warrant his conviction the Magistrate is required to discharge the accused while sec. Sec. 245 (1) deals with those cases where after recording the evidence if the Magistrate considers that no case against the accused has been made out which if unrebutted would warrant his conviction the Magistrate is required to discharge the accused while sec. 246 provides that if the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence the Magistrate is required to frame the charge. Therefore both these sections are to be read together in juxtaposition. At the stage of the framing of the charge the Magistrate is not required to meticulously appreciate the evidence adduced before him. He is not required to consider the probable defence of the accused. He has to consider whether prima facie case is made out against the accused or not. He is not required to appreciate the evidence in detail and find out whether from the evidence adduced before him the prosecution has proved beyond doubt that the accused is guilty. If there is material on record which prima facie indicates that the accused had committed the offence the Magistrate is entitled to form an opinion that there is ground for presuming that the accused has committed an offence and frame the charge. ( 9 ) WHILE interpreting secs. 227 and 228 of the Code which provide for framing of charge in a trial before the Court of Session the Supreme Court in the case of State of Bihar v. Ramesh Singh A. I. R. 1977 Supreme Court 2018 has held that at the stage of framing the charge 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. 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 sec. 227 or sec. 228 of the Code. 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. 227 or sec. 228 of the Code. 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 relevant discussion is in paragraph 4 of the judgment which is reproduced below:"under S. "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 on 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 S. 227 or S. 228 of the Code. If the Judge considers that there is not sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing as enjoined by S. 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 S. 228. Reading the two provisions together in juxtaposition as they have got to be it would be clear that at the beginning and the initial stage of the trial the truth Veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts if proved would be incompatible with the innocence of the accused or not. 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 S. 227 or S. 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 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 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 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 them 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 S. 227 or S. 2e28 then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227". The whole emphasis of the Supreme Court is that at the initial stage of framing of charge strong suspicion that the accused has committed an offence would be sufficient for proceeding against the accused and that would be a ground for proceeding with the matter after framing the charge. The wordings of sec. 228 and sec. 246 are similar. Sec. 228 states that if there is a ground for presuming that the accused has committed an offence the Court is required to frame the charge. Sec. 246 also provides that if the Magistrate is of the opinion that there is a ground for presuming that the accused has committed an offence the charge is required to be framed. In my view therefore the test laid down in the aforesaid Supreme decision would apply with all force while interpreting secs. 245 and 246 of the Code. No doubt the wording of sec. 245 is slightly different from the wording which is used in sec. 227 of the Code. Under sec. 227 if the Judge considers that there is not sufficient ground for proceeding against the accused he is required to discharge the accused. Under sec. 245 if the Magistrate considers that no case against the accused has been made out which if inrebutted would warrant his conviction the Magistrate shall discharge the accused. The phrase no case is made out against the accused would mean that the allegation against him is baseless or groundless and without any substance. Under sec. 245 if the Magistrate considers that no case against the accused has been made out which if inrebutted would warrant his conviction the Magistrate shall discharge the accused. The phrase no case is made out against the accused would mean that the allegation against him is baseless or groundless and without any substance. The Magistrate is required to consider the evidence which has been led by the prosecution and decide whether a case has been made out against the accused or not but while appreciating the evidence at this stage the standard of test and judgment which is to be finally applied after recording the evidence regarding the guilt or otherwise of the accused is not exactly to be applied at this stage. The Magistrate has to consider whether there is prima facie evidence from-which he can form an opinion that the accused has committed an offence then he is required to frame the charge ( 10 ) THE Supreme Court has followed the aforesaid case in the case of Supdt. and Remembrancer of Legal Affairs v. Anil Kumar A. I. R. 1980 Supreme Court 52 has held that at the stage of framing charges standard test proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to the applied at the stage of framing of charge. At this stage even a very strong suspicion fonded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence. Therefore at the stage of the framing of the charge the Magistrate is not required to appreciate the evidence in the same manner as is required to be appreciated at the time of recording the finding regarding the guilt or otherwise of the accused. Strong suspicion would be sufficient for framing charge. ( 11 ) WHILE considering the provisions of sec. 253 Criminal Procedure Code (old) equivalent to sec. 245 Criminal Procedure Code (new) the Supreme Court has held in Abhay Dass v. Gurdial Singh A. I. R. 1971 Supreme Court 834 that when prima facie case is made out the accused must stand the trial. ( 11 ) WHILE considering the provisions of sec. 253 Criminal Procedure Code (old) equivalent to sec. 245 Criminal Procedure Code (new) the Supreme Court has held in Abhay Dass v. Gurdial Singh A. I. R. 1971 Supreme Court 834 that when prima facie case is made out the accused must stand the trial. ( 12 ) FROM the above discussion it is clear that at the stage of framing of charge the Magistrate is not required to appreciate the evidence meticulously but he has to form an opinion on the prima facie case. If he arrives at the conclusion that no case is made out then he has to discharge the accused. But if comes to the conclusion that there is ground for presuming that the accused has committed an offence he has to frame the charge. At this stage secs. 245 and 246 do not require any adjudication to be made about the guilt or otherwise of the accused and the standard of test and judgment which is to be finally applied after recording the evidence regarding the guilt or otherwise of the accused is not exactly to be applied. If the evidence is prima facie sufficient and shows that the ground exists for framing the charge then he cannot pass an order of discharge and he is required to frame charge. ( 13 ) IT was contended by the learned counsel for the respondent No. 1 that in this case the evidence which has been led to prove the guilt of the respondent No. 1 even if fully accepted before it is challenged in the crossexamination or rebutted does not show that he has committed the offence and therefore the discharge order passed by the learned Sessions Judge by allowing the revision application is just and legal and it does not call for any interference in this Special Criminal Application. In my view this submission of the learned counsel is not well-founded because the learned Sessions Judge has apparently applied illegal standard and test at the stage of framing of the charge and he has decided the matter as if he is recording the finding regarding the guilt or otherwise of respondent No. 1 at the final stage. ( 14 ) THE learned Chief Judicial Magistrate has framed the charge against all the accused for the offence punishable under sec. ( 14 ) THE learned Chief Judicial Magistrate has framed the charge against all the accused for the offence punishable under sec. 135 of the Customs Act read with sec. 120-B of the Indian Penal Code. For proving criminal conspiracy there may not be any direct evidence but the chain of circumstances the Court is entitled to draw a reasonable inference and arrive at the conclusion whether the accused has committed the alleged offence or not. Now at the stage of framing of the charge as discussed above the Court is not required to meticulously weigh the circumstantial evidence. If there is strong suspicion which leads the Court to think that there is ground or 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. In the present case the learned Sessions Judge has maintained the charge framed by the Chief Judicial Magistrate against the co-conspirators. According to him there is sufficient to frame charge against the co-accused. Apart from the statements of the co-accused at this stage the evidence against respondent No. 1 discloses that he was in constant touch with the co-accused. His Chanch Bungalow was used by the co-accused. Accused Nos. 2 and 7 were introduced as guests of accused No. 1. From the Chanch Bungalow of the respondent No. 1 torch light signals were sent towards the sea at a regular interval for a period of half an hour at the expected time of arrival of ship carrying smuggled goods. Respondent No. 1 left Bhavnagar when the Custom Officers visited respondent No. 1s residential place and made certain inquiries. Now from this circumstantial evidence and other circumstances submitted in detail by learned counsel for the petitioner it cannot be said that no prima facie case is made out which would indicate that there is ground for presuming that the respondent No. 1 has committed an offence or it cannot be said that no case is made out against the respondent No. 1 which would require his discharge. Therefore the contention of the learned counsel for respondent No. 1 that no case against the respondent No. 1 has been made out which if unrebutted would warrant his conviction cannot be accepted. Therefore the contention of the learned counsel for respondent No. 1 that no case against the respondent No. 1 has been made out which if unrebutted would warrant his conviction cannot be accepted. In my view there is no question of recording a finding whether the respondent No. 1 is guilty or not. From the aforesaid circumstances pointed out by the learned counsel for the petitioner coupled with the statements of the co-accused recorded under section 108 of the Customs Act it cannot be said that no prime facie case is made out against the respondent No. 1. ( 15 ) THE learned counsel for the respondent No. 1 relied upon various decisions to show that the statement of the co-accused cannot be the basis or foundation for the conviction of the accused. He relied upon the judgment of the Supreme Court in the case of Haricharan Kurmi v. State of Bihar A. I. R. 1964 Supreme Court 1184 wherein the Court has held that the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. In my view at this stage there is no question of recording conclusion of guilt against the accused as prima facie case is required to be taken into consideration. Even this very judgment lays down that for receiving assurance to the conclusion of guilt the confession of the co-accused can be taken into consideration He further relied upon the decision of the Privy Council in the case of Bhuboni Sahu v. The King A. I. R. 1949 Privy Council 257. While considering the scope of section 30 of the Indian Evidence Act the Court has held in paragraph 9 as under:"sec. 30 however provides that the Court may take the confession into consideration and thereby no doubt makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. 30 however provides that the Court may take the confession into consideration and thereby no doubt makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence"this judgment also shows that the confession is only one element in the consideration of all the facts proved in the case. It can be put into the scale and weighed with the other evidence. Therefore if there is other circumstantial evidence indicating that the accused was involved in the offence alleged against him the confession of the co-accused can be taken into consideration. He also relied upon the decision of the Supreme Court in the case of Nathu v. State of Uttar Pradesh A. I. R. 1956 S. C. 56 wherein the Court has held that no conviction could be founded upon the confessions of the co-accused but if there was other evidence on which a conviction could be based confessions could be referred to as lending assurance to that conclusion and for fortifying it. ( 16 ) IT seems that the learned Sessions Judge has appreciated the evidence as if he is recording the finding whether the respondent No. 1 is guilty or not. As discussed above it is not permissible at the stage of framing of the charge. Circumstantial evidence as stated above coupled with the statements of the co-accused clearly show that there is prima facie case against the respondent No. 1 and there is ground for presuming that he has committed an offence and therefore the learned Chief Judicial Magistrate was right in framing the charge and it cannot be said that no case against him was made out which if unrebutted would warrant his conviction. ( 17 ) BEFORE parting with this judgment it may be observed that the learned Chief Judicial Magistrate while assessing the evidence at the final stage and in recording his findings on its basis with regard to the proof or otherwise of the guilt of the accused shall not be influenced by anything said by me in this judgment. ( 18 ) IN the result the Special Criminal Application is allowed. ( 18 ) IN the result the Special Criminal Application is allowed. The judgment and order dated 11/05/1983 passed by the Sessions Judge Amreli in Criminal Revision Application No. 35 of 1982 is quashed and set aside and the judgment and order dated 11-6-82 passed by the Chief Judicial Magistrate Amreli in Criminal Case No. 1061 of 1979 framing charge against respondent No. 1 is restored. Rule made absolute. ( 19 ) LEARNED advocate for the respondent No. 1 prays that the operation of this order may be stayed for eight weeks so that he can approach the Supreme Court. The operation of this order is stayed for four weeks. Appeal allowed. .