This revision petition has arisen against the order dated 25.9.90 passed in Sessions Case No. 174 (N-M)/87 (GR Case No.475 of 1985) wader section 302 IPC by the then Sessions Judge, Nagaon discharging the accused persons from indictment under section 302/34 IPC and setting them at liberty. 2. The Sesssions Judge by the impugned order discharged the accused respondents holding that after perusing the case record there found nothing incriminating against them. The order, as it transpires on its reading, is not a mere order of discharge but a full fledged- judgment of acquittal as if rendered on appreciation of evidence. 3. This two petitioners knocked the door for justice against the order of discharge of the accused by the Sessions Judge, Nagaon. Police registered the case aad took up investigation in which it was revealed that the husband and father of the petitioner No. 1 and 2 respectively was killed on 10.30 PM at village Dakhin Vidyanagar and it was suspected that the accused opposite party members alongwith one Mura Singh (since deceased) murdered him upon which ejahar was lodged. Police examined as many as 35 witnesses aad obtained expert report on the seized articles including hawai chappal and blood stained cloths and after closing of the investigation submitted a charge-sheet against four accused persons, the respondents. 4. The investigation report relied by the prosecution revealed the following: (a) Statements of the witnesses. (b) Presence of Manipuri gamocha and hawai chappal. (c) Identification of three persons by sniff idogs engaged by police. (d) Foot printi examining teport of serologiit, With these materials in hand, coming to the order of the Sessions Judge, first glarjng feature noiced, a that m his order, he picked up only one part, i.e. identification of the three accused persons by sniff dog, while keeping aside the other statement of the witnesses which were on record to make out a prima facie case. 5. The prosecution case., as it appears, wa& that at about 9.30 PM on the date of occurrence while the deceased, Nanda Kishore was proceeding towards bis shop house at Hojai Natun Bazar from his house through Tumpring Road the accused respondents followed him and taking advantage of the darkness caused by rain and storm murdered him on the road at about 150 yards away from his house. PW 1 Sita Devi, the widow of the victim, clearly stated in her statement before police under section 167 CrPC that there was a dispute between the victim and the accused persons involving some land and that about a month ago from the date of murder the accused persons threatened to kill the victim if he owner not return the land in question and consequently Joe victim filed a case against the accused respondents under section 107 CrPC. It was also revealed that the son of Mura Singh (since deceased) alongwith two other persons went to the residence of the victim and threatened him with dire consequence if he do not return the land purchased by. him from the said Mura Singh. The eldest son of the said Mura Singh, who is a police personnel also visited the residence of the victim and similarly warned him with dire consequence and the statement of PW 1 was supported by PW 2,6 and- it Immediately after the murder, hearing.the sound at the place of occurrence, neighbouring people gathered there and found deceased lying in a pool of blood and the assailants also left a hawai chappal and Manipuri gamocha at the place of occurrence. Admittedly there was direct evidence/eye witness to the occurrence. Police took the help of dog squad to trace the assailant! and on the next day of occurrence with the help of the trained dog arrested the accused persons, PW 11 and 12 stated before the police as well as before the Magistrate under section 164 CrPC that on the day of occurrence at about 9.30pm they met four, persons waiting with arms on theft band at the place of occurrence and that those persons asked the witnesses to leave the place f could know that those were Manipuri person. PW 17 and are' the police personnel and they stated the dog trained for the purpose after taking smell of the Manipuri gamocha and the, hawai chappal lying at of occurrence rushed to the residence of -the accused persons and lover them at their house, PW 11 also stated before the police that on hence at the relevant time when there was rain and storm he storm persons waiting at the place of occurrence .with the help, of bis torch persons threatened him to leave the, place at once. It was also 1m the statement of those witnesses that one of those persons was wearing a Manipuri gamocha on his head with weapon in hand and others .were also armed with weapons. The PW 24 categorically supported the state-With these materials on record the leagued Session Judge ;case for framing charge. The learned Session Judge by his order discharged the accused persons and set them at liberty holding that there was nothing incriminating against the accused persons. 6. Heard Mr. KK Mahafita, learned counsel for th2 petitioners and Mr. BD Das, learned counsel for the accused respondents. 7. On perusal of the case diary, as stated in the order, the Sessions Judge did not find any circumstantial evidence against the accused persons and that perusing the evidence of the report by the Investigating Officer under section 161 CrPC found nothing incriminating against the accused persons. After that he based his finding that the prosecution simply testified that the police dog entered the house of the accused persons and jumped on them and there was no evidence to show that the towel and chappal found near the place of occurrence belonged to any of the accused persons. Due to his non application of mind to the seriousness of the offence complained of, the Sessions Judge failed to restrict his scrutiny within the limits of section 239 CrPC. He has given his fiidiag relying on the decision of this Court in 1972 CrI LJ 362 which dealt with the evidentiary value of scent identification and he viewed that the dog jumped upon three persons and not merely two and the third man, namely, Asar has not been set up by the police and brushed aside that part of evidence at the stage of framing charge holding that the accused persons can not b6 dragged into criminal prosecution merely on the basis of scent identification by the police .dog. At the stage of framing of charge under section 227/228 it is to see whether a prima facie case regarding the commission of certain offence is made out. The question whether the charges has been proved or not can be determined only after evidence is recorded in the case. By his-order the Sessions Judge decided that case on merits without giving the prosecution an opportunity to adduce evidence against the accused. As submitted jy Mr. The question whether the charges has been proved or not can be determined only after evidence is recorded in the case. By his-order the Sessions Judge decided that case on merits without giving the prosecution an opportunity to adduce evidence against the accused. As submitted jy Mr. Mahanta, learned counsel for the petitioners that the glaring irregular side of this order was that when the learned Sessions Judge based his finding in ths evidence of the scent dog he did not consider other evidence given by the witnesses particularly PWs 1, 2 and 3 Therefore, the petitioners who are the actual aggrieved persons preferred this revision before this Court to quish the glaring irregularity which has prejudiced them. The circumstances in which the persons has to file this revision petition is reasonable and sufficient. Petitioners are therefore, well founded in seeking the quashing of the order of the Sessions Judge. Whatever be the ultimate outcome of the case the Sessions Judge should have framed charge and take the case for trial instead of discharging the accused under section 239 CrPC on the ground that there was nothing incriminating against the accused respondents. I also find that the order of the Sessions Judge suffers from some infirmities. The first error committed by him is failing to comprehend the offence on the basis of the evidence of the prosecution witnesses who categorically stated that they found the chappal and a Manipuri gamocha and that one of the accused persons was wearing the gamocha on his head at that relevant time. The view of the Sessions Judge that the dog jumped upon three persons including one 'Asar by name, who has not been set up by the police is clearly wrong on the facts and circumstances as revealed during investigation. During investigation many things may come before the investigating agency and it is only in trial those things/evidence can be sifted and examined for proper decision after trial. Another error committed by the Sessions Judge is in basing his order on surmise and assumption without recording any evidence. During investigation many things may come before the investigating agency and it is only in trial those things/evidence can be sifted and examined for proper decision after trial. Another error committed by the Sessions Judge is in basing his order on surmise and assumption without recording any evidence. His conclusion that accused persons cannot dragged into criminal prosecution merely on the basis of scent identification the police dog and it would be an abortive exercise to try the accused persons for a charge of murder is based on non application of mind and the identification by police dog is a strong circumstance against the accused persons. 8. Mr. BD Das learned counsel for the respondent strenuously submitted that the order of discharge did not call for quashing by this Court. He submitted that while the prosecution failed to identify the accused persons no case could proceed on mere allegation of the petitioners. He also pleaded that having regard to the long interval of the time that has occurred respondents may be spared with ordeal of a fresh trial and even if a trial would held the evidence adduced by the prosecution would not likely to result in conviction and their trial would only be a futile exercise. 9. As discussed above I restrain myself from expressing any opinion oa the submissions as they will attach upon the merits of the case which can be judged only after evidence which will be recorded in the trial. The delay was not occurred due to the lapse of the aggrieved parties. The respondent in their zeal and a nxiety to get the order of discharge at the threshhold itself over reach in canvassing that the accused respondents are not guilty and claimed to be discharged. When there is glaring error on the face of record the Court in revision/appeal cannot avoid the injustice appearing on the fane of record, only on the ground that long interval of time will effect the case, As stated above I have not expressed any opinion so that it cannot effect the merit of the case. 10. In view of the facts and circumstances and glaring error committed by the Sessions Judge which prejudiced the aggrieved persons, I direct the case to be restored to file for being proceeded further in accordance with law. 10. In view of the facts and circumstances and glaring error committed by the Sessions Judge which prejudiced the aggrieved persons, I direct the case to be restored to file for being proceeded further in accordance with law. It is made clear that none of my observations in this judgment should be construed as any expression on the merits of the case. It is further directed that after framing the necessary charges the Sessions Judge should try to conduct the trial expeditiously, if possible within two months from receipt of this diretion. 11. In the result the petition is allowed.