Judgment : The single accused before the learned Sessions Judge, Madras, in Sessions Case No.89 of 1993 for the charge for the offence under Sec. 302, I.P.C. against him lost his prayer of discharging him from the offence for the reasons of no material or evidence relied on by the prosecution filed under Sec. 227, Crl.P.C.inCrl.M.P.No.4114 of 1995 dated 10. 1993 by the learned Sessions Judge, is the revision petitioner herein challenging the propriety, legality and validity of the impugned order in this revision. 2. For an occurrence happened at 7.45 p.m. on 112. 1991 at Kutcheri Road, about 250 metres from the police station, one Kannuthal was stabbed to death and this was reported to the respondent- police immediately by one witness by name Krishnamurthy who also took the deceased to the hospital. As the injured was brought dead, it was sent to the mortuary and consequently Krishnamurthy gave a written complaint at about 9.00 p.m. on that day. The complaint has been a registered by the Sub Inspector of Police at about 10.15 p.m. on the same day. It appears that except the complainant as witness No. 1, no witnesses were examined on that day. However, it appears that the complainant was examined by the Investigating Officer subsequently on two more occasions and his statement was recorded followed by the examination of the other witnesses. However, the revision petitioner/accused was arrested on 1. 1992 and kept in custody till he was produced in court and nothing appears to have been recovered from him or from his custody. After completing the investigation, the respondent had filed a final report before the court and the copies of the documents of the prosecution under Sec. 207, Crl.P.C. were furnished to the accused. The case was posted for framing of the charge before the learned Sessions Judge. After completing the investigation, the respondent had filed a final report before the court and the copies of the documents of the prosecution under Sec. 207, Crl.P.C. were furnished to the accused. The case was posted for framing of the charge before the learned Sessions Judge. At this stage, a petition under Sec. 227 of the Code of Criminal Procedure, viz., Crl.M.P.No. 4114 of 1993 was filed on behalf of the revision petitioner/ accused praying for his discharge from the offence for the reasons that there is no material or evidence or anything available to get him involved in the instant case on hand and also the case against him was concocted one, that since one of the witnesses by name Pannerselvam was inimical towards him, he was opted by the prosecution subsequent to his arrest for the obvious reasons and that there were no documents or materials attributing any overt-act on the part of the petitioner/accused. 3. After hearing both the sides, namely, the prosecution and the accused/petitioner, the learned Sessions Judge refused to accept the plea of the petitioner/ accused and consequently dismissed the petitioner on 10. 1993. Aggrieved at this order, the present revision has been filed and canvassed challenging the propriety and legality of the impugned order. .4. Mr.Habibullah Basha, the learned Senior Counsel appearing for and on behalf of the revision petitioner drew my attention to the verbatim contents, of the complaint admittedly given by the witness by name Krishnamurthy which is being taken as F.I.R. and registered as Crime No.2903 of 1991 of the respondent Police Station and consequently, the investigation commenced and completed. This witness appears to have been examined by the Investigating Officer on 112. 1991, 112. 1991 and 1. 1992 and his statements were recorded under Sec. 161 of the Code of Criminal Procedure. The accused was admittedly arrested on 1. 1992. Subsequently, the other witnesses by name Loganathan and Pannerselvam were also examined. However, the former one was on 112. 1991 and the latter was on 1. 1992. 1991, 112. 1991 and 1. 1992 and his statements were recorded under Sec. 161 of the Code of Criminal Procedure. The accused was admittedly arrested on 1. 1992. Subsequently, the other witnesses by name Loganathan and Pannerselvam were also examined. However, the former one was on 112. 1991 and the latter was on 1. 1992. The learned Senior Counsel also drew my attention to all the materials and the copies of the case records furnished to the accused as having been relied on by the prosecution and consequently contended that nowhere the accused/ revision petitioner was referred to his identity or by person in whatever manner and that what all that has been referred to, is one that a person aged about 20 or 25 and height about 5 or 5 1/2 feet with some kind of hair has stabbed. Beyond the said identity no person by name or a known person or an unknown person has been referred to in any form by any of the witnesses or the complainant. Admittedly, no copies of the identification parade have been furnished to the accused. It is not known at this stage for the abovesaid reason, whether any identification parade with regard to the identity of the accused has been conducted or not. Though it was claimed that an identification parade was conducted, the memo of evidence does not contain even the name of the Judicial Officer who conducted the identification parade and the date, time and the proceedings are all totally absent in the present case. One is sure to be aware of the result of the identification parade, if had really been conducted, and in which who are all the witnesses who identified the assailant. Thus, it is seen that the identity of the assailant, who caused the injury to the deceased Kannuthal, who died due to the injuries sustained, has not at all been spoken to by any of the witnesses when examined by the Investigating Officer nor his person or identity in any manner has been referred to at all necessitating the conduction of the identification parade as provided by law and admittedly though claimed, it is not known for the obvious reasons no copies of the said proceeding have been given to the accused in this case, nor even referred to. 5. I have perused the impugned order passed by the learned Sessions Judge. 5. I have perused the impugned order passed by the learned Sessions Judge. After having perused the case records, the learned Sessions Judge has observed at one stage that following the case law held in Rameshwar Singh v. State of J. & K., A.I.R. 1972 S.C. 102, the identification parade should be held immediately after the arrest of the accused and that since the physical identification particulars have been stated in the First Information Report, it is not necessary to conduct identification parade and the aforesaid case law is not applicable to this case. With great respect, I am at every difficulty to digest this observation made by the Sessions Judge for the simple reason that no physical identification particular have been stated either in the written complaint or in the statement given before the Investigating Officer recorded under Sec. 161(3), Crl.P.C. at any point of time from any of the witnesses. But some reference has been made at the fag end of the investigation subsequent to the arrest of the accused. In my deep consideration it is only a hearsay and for any reason, the prosecution is not entitled to rely the said portion of the evidence for the reason of Sec. 157 of the Indian Evidence Act. It is not known for what reasons and difficulty or obstacles or circumstances, the factum of identification parade conducted in this case has been suppressed and why the name of the Judicial Officer who conducted the identification parade has not even been stated in the memo of evidence. In fact, in the context of no identity of the assailant nor even referred to by any of the witnesses either in the F.I.R. which came into existence at the earliest point of time or any of the prosecution documents, the securing of the accused necessitates the immediate conduct of the identification parade as per the well settled judicial pronouncement which the highest Court of Law in this country often and often repeatedly held so and however, it has not been followed for the obvious reasons. .6. .6. In Rameshwar Singh v. State of J. & K., A.I.R. 1972 S.C. 102, while dealing with the scope of Sec. 9 of the Evidence Act, the Supreme Court has settled the ratio as hereunder: .“Identification of the accused by the concerned witness where the accused is not previously known to the witness furnishes to the investigating agency an assurance that the investigation is proceedings on right lines in addition to the furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view such identification is a matter of great importance both for the investigating, agency and for the accused.” 7. The Supreme Court in Century Spirting and Manufacturing Company Limited v. State of Maharashtra, A.I.R. 1972 S.C. 545, has held as follows: “It cannot be said that the court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person’s liberty and it cannot be said that the court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Sec. 173 consider it proper to institute the case. The responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. Held, that the trial court rightly came to the conclusion that the prosecution for the offence charged was groundless. Order of discharge made by him was eminently just and fair order.” 8. While dealing with the scope of Secs. 227 and 228, Crl.P.C. this Court had the occasion to observe in a case held between P.R. Subramanian v. Periakaruppan, (1993) 2 M.W.N. (Crl.) 71, as hereunder: “(a) it is well settled that a Judge exercising his power under Secs. Order of discharge made by him was eminently just and fair order.” 8. While dealing with the scope of Secs. 227 and 228, Crl.P.C. this Court had the occasion to observe in a case held between P.R. Subramanian v. Periakaruppan, (1993) 2 M.W.N. (Crl.) 71, as hereunder: “(a) it is well settled that a Judge exercising his power under Secs. 227 and 228 of the Code of Criminal Procedure while framing a charge or no charge, he is required to evaluate the entire material and documents made available on record with the object of finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence and for this limited purpose the Judge may sift the evidence as he cannot be expected even at the initial stage to accept all that the prosecution stated as gospel truth even if it is opposed to common sense of the broad probabilities of the case. (b) The probing of the entire case records and the material relied on by the prosecution to find out the existence of any material available against the accused towards the projection of the alleged offences were or were not in existence is the parameter and consideration to be mandatorily adopted by the Judge while framing the charge and that was the reasons why the provision has been so aptly worded under Sec. 227 of the Code that if 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. But what is ‘not sufficient ground’ is a matter to be considered by the Judges who is sitting on Sec. 228 with the guidelines clearly laid down by the Apex Court.” 9. Thus, the legal ratio settled by now by the judicial pronouncements, of course repeatedly, is to valuate the whole material and evidence available even to identify the prima facie or presumption of the involvement of the accused in any form and then on ascertaining or identifying the same only in any form Sec. 228 can be pressed into service and if not Sec. 227 will definitely come into operation in any case. 10. Controverting the above contentions raised by the learned Senior Counsel on behalf of the revision petitioner, Mr. 10. Controverting the above contentions raised by the learned Senior Counsel on behalf of the revision petitioner, Mr. A.N. Rajan, the learned Government Advocate on behalf of the State/ respondent placed reliance upon so many case laws referring in Lalkhan v. Inspector of Police, Villupuram, 1993 M.L.J. (Crl.) 614, State of U.P. v. Man Mohan, A.I.R. 1986 S.C. 1652, Minakshi Bala v. Sudhir Kumar, 1994 S.C.C. (Crl.) 1181, State of Bihar v. K.J. Singh, 1994 S.C.C. (Crl.) 63, Santosh Dev v. Archna Guha, 1994 S.C.C. (Crl.) 546, Manoj Kumar Shukla v. State of U.P., (1995)1 SCR. 314 and R.S. Nayak v. A.R. Antulay, 1986 S.C.C. (Crl.) 256. Barring the reliance made upon the above case laws, the learned Government Advocate would also venture his interest by dwelling upon the motive portion of the prosecution case as well as the statement given by Mr.Pannerselvam and another witness. All the more he would contend that the reference of the complainant Mr. Krishnamurthy, the first witness, referring a person to be aged about 20 or 25 to the height of 55 1/2 feet will be the identify to be taken as the basis for the whole prosecution. Even so referring I am able to point out that the learned Government Advocate has conveniently omitted to say the non reference of the accused by any of the prosecution witness in any manner that his job cannot be done for the simple reason that the witnesses examined by the investigating agency has not rendered any help to the prosecution to be agitated before the court. This is a revision filed under Sec. 397 of the Code of Criminal Procedure to revise the order passed by the learned trial Judge in declining to discharge the accused for the offence under Sec. 302, I.P.C. for no evidence or material available against the accused and that for the said purpose one has to evaluate the whole material and evidence collected by the investigating agency to frame a charge legally and that what has been stated by the prosecution is not the gospel truth to be taken as the very basis for framing the charge. Therefore, what has been observed by the learned Judge in the impugned order is not correct and in my respectful view it is highly erroneous and perverse which cannot be sustained. Therefore, what has been observed by the learned Judge in the impugned order is not correct and in my respectful view it is highly erroneous and perverse which cannot be sustained. There was no basis for framing any charge in the absence of the totality of the materials required. It is not a mere fancy at all to have the trial against any person for the offence punishable under Sec. 302, I.P.C. by mere presumption. If the concept propagated by and on behalf of the respondent is accepted, I would like to say, with great constraint, that all the criminal trials in respect of murder charges would become a fancy and against the procedural mandate as repeatedly and often held by the Courts of Law in this country. Therefore, the impugned order passed by the learned Sessions Judge became vulnerable and liable to be set aside. The catena of the case laws relied on by and on behalf of the respondent in my respectful view and consideration, do not render any help to the respondent. Therefore, I do not propose to refer each and every case law in detail in this order. In short to say, the revision has to succeed and the impugned order is consequently liable to be set aside for all reasoning given above. 11. In the result, the revision stands allowed. Consequently, the order passed by the learned Sessions Judge in Crl.M.P.No. 4114 of 1993 on 10. 1993 is hereby set aside. On the other hand, petition filed under Sec. 227 of the Code of Criminal Procedure is hereby allowed by discharging the accused under Sec. 227, Crl.P.C.