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2021 DIGILAW 230 (ALL)

Sundar Bhati v. State of U. P.

2021-02-08

DEEPAK VERMA

body2021
JUDGMENT : Deepak Verma, J. 1. Heard Sri Dheeraj Singh (Bohra), learned counsel for the revisionist, Sri Anil Srivastava, learned Senior Advocate assisted by Sri Harikesh Kumar Gupta, learned counsel for the opposite party no.2, learned AGA on behalf of the State and perused the record. 2. Pleadings are exchanged between the parties. 3. Present criminal revision has been preferred against the judgement and order dated 12.02.2020 passed by Additional District Judge, Court No.3, Gautam Budh Nagar, in Sessions Trial No.454 of 2018 (State vs. Sundar Bhati & another) under Sections 147, 148, 149, 302/34, 120-B I.P.C. & Section 7 of Criminal Law Amendment Act, Police Station Bisrakh, District Gautam Budh Nagar, whereby discharge application (5C) of the revisionist filed under Section 227 Cr.P.C. has been rejected. 4. The revisionist has challenged the revision on the following grounds:- I. Because, the judgment and order dated 12.02.2020 passed by Court below is illegal, irregular, improper and incorrect as such the same is liable to be set aside by this Hon’ble Court. II. Because, the learned Additional District Judge/Court No.3, Gautam Budh Nagar, has not assigned detailed reasons for dismissing the discharge application under Section 227 Cr.P.C. filed by the revisionist. III. Because, the learned Additional District Judge/Court No.3, Gautam Budh Nagar, has not considered the material which the accused-revisionist produced at the stage contemplated in Section 227 Cr.P.C. to save lot more time in the name of trial proceedings. IV. Because, the revisionist is not named in the F.I.R., his name does not find place in the statement of any material or independent witness of the incident. V. Because, the investigating officer recorded confessional statement of co-accused Naresh Tewatiya on 04.12.2017 in police custody. In his statement Naresh Tewatiya revealed that; the brother of the revisionist namely Sahdeo Bhati met him in jail and during visit he became well known to Anil Bhati son of Sahdeo Bhati who planned for murder of Shiv Kumar (one of the deceased). Except this statement there is no evidence at all against the revisionist. VI. Because, the Court below has recorded wrong findings that ; there is statement of the other witnesses apart from the statement of co-accused Naresh Tewatiya with regard to involvement of revisionist in the crime in question. VII. Except this statement there is no evidence at all against the revisionist. VI. Because, the Court below has recorded wrong findings that ; there is statement of the other witnesses apart from the statement of co-accused Naresh Tewatiya with regard to involvement of revisionist in the crime in question. VII. Because, there is no evidence on record which goes to the root that; the revisionist had eve met with any accused and hatched any conspiracy to commit murder of Shiv Kumar (one of the deceased) or the revisionist had talked about the incident with any witness of the case, prior to the alleged incident. VIII. Because, the confessional statement of only one accused which too does not show the direct or indirect involvement of the revisionist in the crime in question, prima facie does not attract section 120-B I.P.C. against the revisionist, moreover, the confessional statement of any accused in police custody before police is not admissible under the provision of Evidence Act. IX. Because, the law is trite that; only on the basis of provable suspicion any charge can not be levelled to anyone and there may be some suspicion but such suspicion cannot take form of evidence. X. Because, the Court below has rejected the discharge application (5C) filed by the revisionist, in cyptic manner and without recording any cogent and reasoned findings. 5. That the First Information Report lodged by Yogesh Yadav, opposite party no.2 on 17.11.2017 as Case Crime No.751 of 2017 under sections 147, 148, 149, 302, 34 I.P.C., Police Station Bisrakh, District Gautam Budh Nagar regarding incident which took place on 16.11.2017, alleged therein that when his Tau’s son (deceased) was going to home from school with his gunner and driver by his Fortuner Car, two motorcycles on which five persons were sat started firing over the car. Car stopped at divider. Some more person reached there, fired 30 to 40 round and ran away with shouting killed Sheo Kumar and work has done. In this firing three persons died. 6. The investigating officer submitted chargesheet No.57-B/18 on 07.05.2018 against Anil Bhati, Sheru Bhati, Sahdeo Bhati and Sundar Bhati (revisionist), Pradeep @ Bholu and Aman @ Fauji @ Raj Kumar under sections 147, 148, 149, 302, 120-B, 34 I.P.C. and 7 Criminal Law Amendment. 7. Revisionist Sundar Bhati moved application 5-C under section 227 Cr.P.C. for discharge. 6. The investigating officer submitted chargesheet No.57-B/18 on 07.05.2018 against Anil Bhati, Sheru Bhati, Sahdeo Bhati and Sundar Bhati (revisionist), Pradeep @ Bholu and Aman @ Fauji @ Raj Kumar under sections 147, 148, 149, 302, 120-B, 34 I.P.C. and 7 Criminal Law Amendment. 7. Revisionist Sundar Bhati moved application 5-C under section 227 Cr.P.C. for discharge. By the impugned order dated 12.02.2020, learned Judge has rejected the discharge application of the revisionist. 8. Learned counsel for the revisionist submitted that revisionist has been falsely implicated in the matter only on the confessional statement of the co-accused in which revisionist name surfaced for the first time. 9. Learned counsel for the revisionist has relied on the judgement of the Apex Court in Vikram Johar vs. State of Uttar Pradesh and another reported in (2019) 14 SCC 207 , Satish Mehra vs. Delhi Administration and another reported in (1996) 9 SCC 766 , State by the Inspector of Police, Chennai vs. S.Selvi and another reported in (2018) 13 SCC 455 . 10. In the case of Vikram Johar-appellant (supra), a surveyor appointed by Insurance Company, submitted a report to repudiate the claim due to misrepresentation and false declaration regarding the claim made by complainant-Insurance Company. Complainant filed an application under Section 156(3) Cr.P.C. alleging offences under sections 383, 384, 471, 504 & 506 I.P.C. against the appellant. Investigating Officer submitted closure report. Magistrate treating it a complaint case and recording statements under sections 200 & 202 Cr.P.C., summoned appellant under sections 504 & 506 I.P.C. Courts below rejected the prayer to discharge the respondent-accused. The appellant contended that the complaint filed by complainant was nothing but proceeding for harassment of appellant. Twice the Investigating Officer has conducted the investigation and submitted a closure report. Mere allegation that appellant case and abused complainant does not satisfy the ingredients of Sections 504 & 506 I.P.C. when the complaint filed under Section 156(3) Cr.P.C., which has been treated as a complaint case, does not contain ingredients of sub-sections 504 & 506 I.P.C. and rejected the application of discharge filed by the appellant. 11. The fact of the present case is entirely different from the case narrated and dealt in the case cited above. 12. 11. The fact of the present case is entirely different from the case narrated and dealt in the case cited above. 12. In the case of Satish Mishra (supra), Hon’ble Apex Court while entertaining Special Leave to Appeal after submission of charge-sheet has held in Paras 14 & 15, are relevant for the said purpose, the same are being quoted below:- 14. The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the court and saves much human efforts and cost. 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. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code. 15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of workload. If the sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself.” 13. Hon’ble Apex Court has held that when the Court is of opinion that there is ground to presume that the accused has committed an offence, the procedure laid down therein has to be adopted. 14. In the case of Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra reported in (2008) 10 SCC 394 , Hon’ble the Apex Court has dealt with Section 120-B I.P.C. Paragraphs 19 to 24 are relevant to be quoted here: 19. Section 120-B I.P.C. provides for punishment for an offence of criminal conspiracy. 20. 14. In the case of Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra reported in (2008) 10 SCC 394 , Hon’ble the Apex Court has dealt with Section 120-B I.P.C. Paragraphs 19 to 24 are relevant to be quoted here: 19. Section 120-B I.P.C. provides for punishment for an offence of criminal conspiracy. 20. The basic ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. Yet, as observed by this Court in Shivnarayan Laxminarayan Joshi & Ors. Vs. State of Maharashtra, a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible. 21. In Mohammad Usman Mohammad Hussain Maniyar & Ors. Vs. State of Maharashtra, it was observed that for an offence under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by necessary implication. 22. In Kehar Singh & Ors. Vs. State (Delhi Administration), the gist of the offence of the conspiracy has been brought out succinctly in the following words: "The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough." 23. Again in State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors., a three-Judge Bench of this Court held that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. Mere knowledge, or even discussion, of the plan is not, per se, enough." 23. Again in State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors., a three-Judge Bench of this Court held that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. 24. More recently, in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru, making exhaustive reference to several decisions on the point, including in State Through Superintendent of Police, CBI/SIT Vs. Nalini & Ors., Venkatarama Reddi, J. observed thus: "Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused (per Wadhwa, J. in Nalini's case at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible." (Tanviben Pankajkumar case, SCC page 185, para 45). G.N. Ray, J. in Tanibeert Pankaj kumar observed that this Court should not allow the suspicion to take the place of legal proof." 13. It is trite that the words “not sufficient ground for proceeding against the accused” appearing in Section 227 Cr.P.C. 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. 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. 14. 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. 15. In Union of India vs. Prafulla Kumar Samal and another reported in (1979) 3 SCC 4 , the Hon'ble Apex Court has held in para-10 that in exercising jurisdiction under Section 227 of the Code, the Special 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 in the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 16. While considering the question of framing charges, under which section he 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. 17. 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. 18. 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. 18. 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 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. 19. On the other hand, learned AGA has vehemently opposed the prayer. According to him, revisionist has not made out any case for discharge. Prima-facie from the statements of the witnesses and record, offence is made out to be charged under section and indulgence of revisionist in conspiracy cannot be ruled out at this stage. 20. In counter affidavit, State has specifically submitted that learned trial court is competent to frame the charges and the evidences are required to be examined and learned trial court after examining the witnesses would decide the matter whether the revisionist was involved or not and at this stage when trial is going on there is no material evidence to discharge the revisionist. 21. Sri Anil Srivastava, learned Senior Advocate appeared on behalf of the opposite party No.2 argued that revisionist is a harden criminal having criminal history of 45 cases and in which 14 cases are under Section 302 I.P.C. These facts have been specifically stated in paras 5 & 6 of the counter affidavit filed by the opposite party no.2. He further argued that admittedly there was conspiracy of the revisionist in the present case and sufficient evidence has been collected by the investigating officer against the revisionist thereafter chargesheet was submitted. He further argued that present revisionist is harden criminal of western Uttar Pradesh and he always commits murder on the basis of certain conspiracy and remained in jail so that he may escape from criminal conspiracy of murder of the concern persons, though in most of the cases conspiracy of revisionist has been established. At present he cannot take benefit that he was not named in the FIR though he is the main conspirator, at this stage, trial court while rejecting the application of discharge has recorded the legal position in the matter while passing detailed order and rightly rejected the application of the revisionist. 22. At present he cannot take benefit that he was not named in the FIR though he is the main conspirator, at this stage, trial court while rejecting the application of discharge has recorded the legal position in the matter while passing detailed order and rightly rejected the application of the revisionist. 22. Learned Senior Advocate while arguing has placed reliance in various judgments of the Apex Court in which the Hon'ble Apex Court has held that at the time of framing charges, only prima-facie case is to be seen whether the case is beyond reasonable doubt, is not be seen at such stage, the Court has to see if there is sufficient for proceeding against accused while collecting materials, strict standard of proof is not required; only prima facie case against the accused is to be seen; Judge is not required to record detailed reasons as to why such charge is framed and perusal of the record and hearing of the parties, if Judge is of opinion that there is sufficient ground for presuming that accused has committed offence triable by Court of Session, he shall frame charge against such offence. 23. Sri Anil Srivastava, learned Senior Advocate has placed reliance upon the Apex Court judgment in Supdt. And Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja an others reported in (1979) 4 SCC 274 in which the Hon’ble Court has held that where a case is at the stage of framing charges and the prosecution evidence has not yet commenced, the Magistrate has to consider the question of sufficiency of ground for proceeding against the accused on a general consideration of materials placed before him by the investigating police officer. The truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded 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. 24. At this stage, even a very strong suspicion founded 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. 24. He further placed reliance upon the judgement of the Apex Court in Sanghi Brothers (Indore) Private Limited vs. Sanjay Choudhary and others reported in (2008) 10 SCC 681 . The relevant paras 12 and 13 are quoted below. 25. Sections 227, 239 & 245 deal with discharge from criminal charge. In State of Karnataka vs. L.Muniswamy, 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. 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 trial. Nothing more is required to be inquired into. 12. In R.S.Nayak v. A.R.Antulay, 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 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. 26. He next placed reliance upon the Apex Court judgment in Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau reported in (2000) 1 SCC, 138. In this case Hon’ble Court has held 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. There is no scope for contending in the present case that the court cannot frame charge under Section 29 read with Section 23 of the NDPS Act. There is no scope for contending in the present case that the court cannot frame charge under Section 29 read with Section 23 of the NDPS Act. The trial court and the High Court rightly repelled the plea of the appellant in that regard. Paragraphs 15 and 18 are relevant for the said purpose, the same are being quoted below: 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. 18. There is no scope for contending in this case that the court cannot frame charge under Section 29 read with Section 23 of the NDPS Act. The trial court and the High Court rightly repelled the plea of the appellant in that regard. We, therefore, dismiss this appeal. Needless it is to say that the trial court shall dispose of the case untrammelled by any observations made by the High Court in the impugned order or by us in this judgment. 27. He next placed reliance upon the judgment of the Apex Court in State of Maharashtra and others vs. Som Nath Thapa and others reported in (1996) 4 SCC 659 . Relevant paras are 29, 30, 31 & 32 of the judgment. The same are being quoted below:- 29. What was stated in this regard in Stree Atyachar Virodhi Parishad case which was quoted with approval in paragraph 78 of State of W.B. vs. Mohd. Khalid is that what the court has to see, while considering the question of framing the charge, is whether the material brought on record would reasonably connect the accused with the crime. No more is required to be inquired into. 30. In Antulay case, Bhagwati, C.J., opined, after noting the difference in the language of the three pairs of sections, that despite the difference 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 “prima facie” case has to be applied. 30. In Antulay case, Bhagwati, C.J., opined, after noting the difference in the language of the three pairs of sections, that despite the difference 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 “prima facie” case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, a better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame a charge against him for committing that offence. 31. Let us note the meaning of the word ‘presume’. In Black’s Law Dictionary it has been defined to mean “to believe or accept upon probable evidence”. (emphasis ours). In Shorter Oxford English Dictionaryit has been mentioned that in law ‘presume’ means “to take as proved until evidence to the contrary is forthcoming”, Stroud’s 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.” (emphasis supplied). In Law Lexicon by P.Ramnath Aiyer the same quotation finds place at p. 1007 of 1987 Edn. 32. The aforesaid shows that 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. 28. I have perused the judgement cited by the learned counsel for the revisionist as well as by the State counsel and also perused the impugned order passed by the trial court. 29. 28. I have perused the judgement cited by the learned counsel for the revisionist as well as by the State counsel and also perused the impugned order passed by the trial court. 29. Trial court while rejecting the application of the revisionist has clearly observed that from perusal of evidence quoted during investigation, prima facie case is made out under sections 147, 148, 149, 302/34, 120-B I.P.C. and Section 7 Criminal Law Amendment Act, therefore, no case is made out to discharge the revisionist-applicant. The scope under Sections 226 & 227 Cr.P.C. have been dealt with by the Supreme Court in a large number of cases. In catena of judgments Hon’ble Apex Court has held that at the stage of deciding the application under Section 227 Cr.P.C., the Court has to only see prima-facie case is made out or not. Learned counsel for the opposite party and learned counsel for the revisionist has placed reliance on various judgments of the Apex Court. After perusing of that judgments it appears that Hon’ble Apex Court has categorically held that Court if found primia facie case is made out then he should not interfere in the application for discharge of the applicant. 30. In recent judgment of Hon’ble Apex Court in Bhawna Bai vs. Ghanshyam and others reported in (2020) 2 SCC 217 , Hon’ble Apex Court has held that if Judge is of opinion that there is sufficient ground for presuming that accused has committed offence triable by Court of Session, he shall frame charge against accused for such offence. Relevant paras are 13, 14, 15 & 19. The same are being quoted below: 13. Though the circumstances alleged in the charge sheet are to be established during the trial by adducing the evidence, the allegations in the charge sheet show a prima facie case against the accused respondent Nos.1 and 2. The circumstances alleged by the prosecution indicate that there are sufficient grounds for proceedings against the accused. At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen. 14. Chapter XVIII Crl.P.C. deals with “Trial before a Court of Session”. As per Section 226 Crl.P.C., the public prosecutor is required to open the case before the Sessions Court by describing the charge brought against the accused and stating by what evidence, he proposes to prove the guilt of the accused. Section 227 Crl.P.C. deals with discharge and it reads as under:- “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 not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 15. Considering the scope of Sections 227 and 228 Crl.P.C., in Amit Kapoor v. Ramesh Chander and another (2012) 9 SCC 460 , the Supreme Court held as under:- “17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Section 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. It may even be weaker than a prima facie case. There is a fine distinction between the language of Section 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.” 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 Singh (1977) 4 SCC 39 : (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 ground for proceeding against the accused, he shall 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. 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 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 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. 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 228 and not under Section 227.” In Soma Chakravarty v. State, (2007) 5 SCC 403 at page 408, the Supreme Court opined:— “It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of 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. 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 at that stage, Before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.” The Supreme Court after referring to a number of cases came to hold in Yogesh v. State of Maharashtra, (2008) 10 SCC 394 , at page 399: “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, make a conviction reasonably possible. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398 , at page 402: 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. In R.S.Mishra v. State of Orissa, (2011) 2 SCC 689 , at page 700, the Supreme Court noted as follows:— “The observations of this Court in State of Bihar v. Ramesh Singh, are very apt in this behalf. In R.S.Mishra v. State of Orissa, (2011) 2 SCC 689 , at page 700, the Supreme Court noted as follows:— “The observations of this Court in State of Bihar v. Ramesh Singh, 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 Court referred to the judgment of a Bench of three Judges in Nirmaljit Singh Hoon v. State of W.B, which in turn referred to an earlier judgment of a Bench of four Judges in Chandra Deo Singh v. Prokash Chandra Bose and observed as follows in SCC para 5: (Ramesh Singh case 4, SCC p. 42) 5. In Nirmaljit Singh Hoon v. State of W.B, Shelat, 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 Bose, where 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.” 31. From the evidence available on record and bearing in mind the principles laid down by the Hon’ble Apex Court and the facts narrated above by learned AGA and learned counsel for the opposite party as the revisionist is a harden criminal having record of 45 cases of murder, extortion etc. in which he is facing trial and in various cases he is involved as conspirator/master mind of the case in committing the offence and evidences have yet to come while trial. in which he is facing trial and in various cases he is involved as conspirator/master mind of the case in committing the offence and evidences have yet to come while trial. Moreover a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Learned trial court has held that prima-facie case is made out against the accused/revisionist as evidences available on record under Sections 147, 148, 149, 302/34, 120-B I.P.C. & Section 7 of Criminal Law Amendment Act. 32. In view of the above, the prayer of revisionist to quash the impugned order dated 12.02.2020 passed by Additional District Judge, Court No.3, Gautam Budh Nagar, in Sessions Trial No.454 of 2018 (State vs. Sundar Bhati & another) under Sections 147, 148, 149, 302/34, 120-B I.P.C. & Section 7 of Criminal Law Amendment Act, Police Station Bisrakh, District Gautam Budh Nagar, cannot be accepted. 33. I find that there is no error in the impugned order of the learned Sessions Judge. The revision lacks merit and is liable to be dismissed. 34. The present revision is accordingly, dismissed.