JUDGMENT Hon’ble Surendra Singh, J.—The applicants by way of filing this application under Section 482, Cr.P.C. have sought to quash the charges framed by IInd Additional Sessions Judge, Jalaun at Orai in S.T. No. 44 of 2009 (State v. Narain Singh) vide order dated 5.5.2009. 2. Briefly put, the facts may be summarised as follows : On 28.2.1987 one Lakhan Lal Singh lodged report against the applicants and one Jaswant Singh (died) at Police Station Kotwali, Orai, District Jalaun under Sections 364 and 376, I.P.C. vide Case Crime No. Nil of 1987 pertaining to the incident alleged to have taken place on 28.2.1987 at 8.00 p.m. It appears that said F.I.R. was sent by the police of the Police Station Orai to Police Station Jalaun, District Jalaun for the reasons that the alleged incident was committed within the territorial jurisdiction of Police Station Jalaun where the F.I.R. was registered as Case Crime No.75 of 1987. 3. The police during the course of investigation had recorded the statement of Prabhu Basore, brother of the prosecutrix Smt. Tulsa Devi, Ram Das and Ghanshyam Chamar on 1.3.1987 while statement of Radhey Lal was recorded on 6.3.1987, in addition statement of eye-witness Raj Bahadur Singh was recorded on 29.3.1987 and on 9.4.1987. Statements of Lakhan Lal (informant) and Smt. Tulsa Devi were also recorded. 4. The police after usual investigation submitted Final Report No. 9 of 1987 dated 9.4.1987 in the Court of concerned Magistrate on the ground that F.I.R. lodged by the opposite party No. 2 was manifestly attended with malafides and the prosecution against the applicants was instituted maliciously. 5. Aggrieved by the submission of final report, the victim, Smt. Tulsa Devi on 26.5.2007 filed her protest petition. Having considered the material placed on the record and hearing the prosecutrix on the protest petition, learned Magistrate rejected the Final Report and had summoned the applicants by virtue of order dated 13.7.2007. Aggrieved by the summoning order, co-accused Jaswant Singh by way of filing an application under Section 482, Cr.P.C. which was numbered as Criminal Misc. Application No. 13989 of 2007 has sought to quash the impugned order dated 13.7.2007 as well as entire criminal proceeding pursuant thereto against him. The criminal proceedings were stayed by this Court but sometime in the year 2007 the said application was dismissed and further direction was issued for the expeditious disposal of the trial. Application No. 13989 of 2007 has sought to quash the impugned order dated 13.7.2007 as well as entire criminal proceeding pursuant thereto against him. The criminal proceedings were stayed by this Court but sometime in the year 2007 the said application was dismissed and further direction was issued for the expeditious disposal of the trial. During this period, the main accused Jaswant Singh breathed his last. The case was committed to the Court of Sessions and in consequence thereto the case was transferred to the Court of Additional Sessions Judge, Jalaun at Orai before whom discharge application on behalf of the applicants was filed and the trial Court was of the view that charges under Sections 376/109 and 364, I.P.C. were made out against the applicants and fixed 5.5.2009 the date for framing the charges against them. The trial Court relying upon the statements of the informant Lakhan Singh and the victim Smt. Tulsa Devi framed the charges against the applicants under Sections 376/34 and 364, I.P.C. on 5.5.2009 against which the present application has been preferred by the applicants, inter alia on the below noted grounds : (1) That the witnesses Prabhu Basore, brother of the prosecutrix, Smt. Tulsa Devi and Radhey Lal alleged to be the real husband of the prosecutrix have not supported the prosecution case in their statements recorded under Section 161, Cr.P.C. (2) That female child witness Km. Sandhya who was alleged to be kidnapped by the applicants was recovered from the lawful guardianship of her actual father Radhey Lal and thus the story of kidnapping was found to be false and fabricated. (3) That prosecutrix Smt. Tulsa Devi as well as informant Lakhan Lal have filed various applications and affidavits in the Court as well as before the authorities to the effect that the applicants have neither committed rape on her nor any such incident had taken place. 6. Learned counsel for the applicants has urged that keeping in view of the aforesaid facts and circumstances of the case no offence under Sections 376/109 and 364, I.P.C. is made out and, therefore, the order framing charges deserves to be quashed. 7. 6. Learned counsel for the applicants has urged that keeping in view of the aforesaid facts and circumstances of the case no offence under Sections 376/109 and 364, I.P.C. is made out and, therefore, the order framing charges deserves to be quashed. 7. On the other hand, learned A.G.A. has contended that the trial Court after relying upon the allegations made in the F.I.R. and statements of prosecutrix Smt. Tulsa Devi, (informant) Lakhan Lal and Raj Bahadur recorded under Section 161, Cr.P.C. as well as the medical report of the prosecutrix, has rightly framed charges against the applicants under Sections mentioned above and the order under challenge does not warrant any interference by this Court. 8. Taking note of the submissions made by the counsel for the parties and having perused the material placed on record, I am of the view that the trial Court has not committed any serious error in passing the impugned order insofar as it did not enter into the realm of appreciation of the evidence at the stage of framing of the charges. The jurisdiction of the trial Judge while exercising the power under Section 227 of Code of Criminal Procedure is limited. Hon’ble Apex Court has settled the legal position in the catena of decisions that after on the basis of the material on record, the Court formed the opinion that the accused might have committed the offence it can frame the charges, though for the conviction the case is required to be proved beyond reasonable doubt that the accused has committed the offence. At the stage of the framing of 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 at this stage. 9. Hon’ble Apex Court in the case of Palvinder Singh v. Balvinder Singh, 2009 (65) ACC 399 has held that charges can be framed also on the basis of the strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at the point of framing of charge. 9. Hon’ble Apex Court in the case of Palvinder Singh v. Balvinder Singh, 2009 (65) ACC 399 has held that charges can be framed also on the basis of the strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at the point of framing of charge. However, in the case of Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, 2009(1) JIC 315 (SC), it has been held that if two views are equally possible from the material produced by the prosecution and the trial Judge is satisfied that such material produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully competent to discharge the accused. Para 15 of the decision is relevant for this purpose which is quoted below : “15. 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 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, makes a conviction reasonably possible.” 10. In the case of Onkar Nath Mishra v. State of N.C.T. of Delhi, (2008) 1 SCC (Cri) 507 Hon’ble Apex Court has held in para 11 as noted below : "11. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible.” 10. In the case of Onkar Nath Mishra v. State of N.C.T. of Delhi, (2008) 1 SCC (Cri) 507 Hon’ble Apex Court has held in para 11 as noted below : "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 funded 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.” 11. The Hon’ble Apex Court has further urged that it is beyond any doubt or suspicion that at the stage of framing of charges, 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. It would only have to see as to whether a prima facie case has been made out where a case of probable conviction for commission of an offence has been made on the basis of the materials found during the course of investigation should be the concern of the Court. It, at this stage, would not delve deep into the matter for the purposes of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any. 12. It, at this stage, would not delve deep into the matter for the purposes of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any. 12. A Full Bench of the Hon’ble Supreme Court in the case of State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC (Cri) 415 after considering several decisions held that there can only be limited evaluation of materials and documents on record and shifting of evidence to prima facie finding out whether sufficient ground exists or not for the purpose of proceeding further in the trial, being so held with reference to the materials and documents produced by the prosecution and not the accused. It is settled legal position that the material as produced by the prosecution alone is to be considered and not one produced by the accused and ultimately expressed opinion that at the time of charge and cognizance the accused has no right to produce any material. It has further been held that the accused has no right to produce any document at the time of framing of charge, having regard to the clear mandate of Sections 227 and 228 contained in Chapter VII and Sections 339 and 340 in Chapter XIX. The Full Bench has further observed that the width of powers of the High Court under Section 482, Cr.P.C. and Article 226 of the Constitution of India is unlimited whereunder in the interest of justice the High Court can make such orders as may be necessary to prevent abuse of process of Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case 1992 Suppl (1) SCC 335. 13. Moreover, in this light the Hon’ble Apex Court in its recent decision in the case of Rukmini Narvekar v. Vijaya Satardekar, 2009 (1) SCC (Cri) 721 after considering its earlier decisions has been pleased to observe in paras 21 and 22 of the judgement as follows : “21. We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as Euclid’s formula (vide Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University). As observed by this Court in Bharat Petroleum Corpn. We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as Euclid’s formula (vide Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University). As observed by this Court in Bharat Petroleum Corpn. Ltd. v. N.R. Viramani, observations of Courts are neither to be read as Euclid’s formula nor as provisions of the statute. 22. Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi case, there may be some very rare and exceptional cases where some defence material when shown to the trial Court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstance can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produced some material which convincingly demonstrate that the whole prosecution case is totally absurd or totally concocted.” 14. Therefore, it is now settled legal position that material produced by the prosecution alone is to be considered and not one produced by the accused and ultimately it is also settled that at the time of the framing of charges or taking cognizance, the accused has no right to produce any material. However, it is open to this Court to consider the material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained in exercise of power conferred under Section 482 of Code of Criminal Procedure. 15. Reverting back to the present case, hard reality cannot loss sight of this Court regarding the nature and quality of the material evidence produced by the prosecution. It conspicuously transpires that credibility of the prosecutrix itself has been very weak and fragile in nature. Even her medical report does not suggest about application of any force at the time of the commission of the crime, rather there would have been some mark of external injuries on her person. It conspicuously transpires that credibility of the prosecutrix itself has been very weak and fragile in nature. Even her medical report does not suggest about application of any force at the time of the commission of the crime, rather there would have been some mark of external injuries on her person. Moreover, the prosecutrix Smt. Tulsa Devi as well as informant, Lakhan Lal have filed several applications and affidavits in the Court of Munsif Magistrate which were paper Nos. 30Kha, 32Kha, 35Kha and 64Kha pertaining to the denial of allegation of rape and kidnapping against the applicants. Indisputably, such type of affidavits filed by the witnesses at this stage do not carry much weight and witnesses cannot be discarded at this ground alone rather the tactics adopted by the witnesses or defence side in getting such type of affidavit in advance is to be discouraged and deprecated as that would amount to an attempt aimed at dissuading the witnesses from speaking truth before the Court. Apart from this the counsel for the applicants has made much emphasis that Km. Sandhya was recovered from guardianship of her father which is apparent from the prosecution papers itself, therefore, no charge under Section 364, Cr.P.C. is made out, rather it ought to have been struck down. As far as other witnesses, namely, Prabhu Basore, brother of the prosecutrix, Ram Das, Ghanshyam and Radhey Lal are concerned, they have not supported the prosecution story. 16. Justice is the most precious concern of mankind. Trial Judge is supposed to exercise his discretion i.e. judicial discretion with judicious mind with a view that no innocent person is unnecessarily harassed and to ensure punishment to the guilty person. Simultaneously, one of the paramount duties of the Court is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of the false and wholly untenable allegations. 17. Simultaneously, one of the paramount duties of the Court is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of the false and wholly untenable allegations. 17. Indisputably, this Court ordinarily should not embark upon an inquiry into the truthfulness of the allegations made by the informant but where the charges are framed by the trial Court without considering the material with closed mind and charges amount to gross misuse of criminal justice system and trial is abuse it becomes the duty of this Court to intervene in such cases in exercise of the power conferred under Section 482, Cr.P.C. so that there is no miscarriage of justice and faith of the people remains intact in judicial system. 18. Having considered aforesaid facts and circumstances of the case, and the view expressed by Hon’ble Apex Court in various decisions, in my view, therefore, the order framing charges is liable to be set at rest. 19. Resultantly, this application is allowed and the order dated 5.5.2009 framing charges against the applicants is set aside. 20. However, the Court in seisin with the sessions trial before proceeding ahead shall make a fresh look into the nature and quality of the material produced by the prosecution, then reconsider for discharge or framing of charge as the case may be in accordance with law discussed above. The interim order dated 10.8.2009 passed by this Court is vacated. ———