1. This Criminal Revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 is preferred being aggrieved by the order dated 28.03.2022 passed in Sessions Trial No.74 of 2020 by the learned II Additional Sessions Judge, Agar, District Shajapur (M.P.), whereby charges under section 394 of the IPC have been framed against the revision petitioner in connection with Crime No.192 of 2019 registered at Police Station- Kanad, District- Agar Malwa (M.P.).

2. Facts of the case in brief are that:- crime No.192 of 2019 registered at Police Station- Kanad, District- Agar Malwa (M.P.) regarding the loot by putting red chilli in the eyes of Govind Singh on 06.09.2019 at 12:30 p.m. 40 kms. to the south west from Police Station Kanad in which Rs.20,000/- cash, ATM, a bill book was looted from the L.S.R. working with Bharti Samridi Finance Limited Company, Branch Master Colony, Agar Malwa. After investigation, the involvement of Shera@Sheru@Udhay Singh and Radheshyam@ Radhu, Vakeel@Gyaan Singh Gurjar and Sunil Gurjar (revision petitioner) was found. Shera@Sheru@Udhay Singh and Radheshyam@ Radhu were apprehended on 25.12.2019 and charge sheet was submitted against them as Sunil Gurjar and Vakeel@Gyaan Singh could not be apprehended. When Vakeel@Gyaan Singh was apprehended on 25.12.2020 and Sunil Gurjar was apprehended on 27.12.2020 then supplementary charge sheet was submitted.

3. Challenging the framing of charges this revision petition is preferred on the ground that no connecting material have been collected during the investigation. The report was lodged against four unknown persons. The prosecution story is contradictory and no connection with the present revision petitioner.

4. Heard.

5. Counsel for the State opposed the revision petitioner.

6. Before dealing with the rival contentions, it is appropriate to refer to the scope of exercise of power under section 227 of the Cr.P.C or presently section 250 of the BNSS, 2023.The Apex Court in P. Vijayan vs. State of Kerala and another - (2010) 2 SCC 398, made an in-depth consideration regarding the scope of power under section 227 Cr.P.C and held thus:

          "10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which 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."

          If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

          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."

7. In Sajjan Kumar vs. Central Bureau of Investigation - (2010) 9 SCC 368, the Apex Court has laid down certain guiding principles for discharge as under:

          "21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

          (i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima facie case would depend upon the facts of each case.

          (ii) 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.

          (iii) The 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

          (iv) If on the basis of the 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.

          (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

          (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

          (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."

8. The position of law enunciated in the said decisions reveals that while invoking the power under section 227 of the Cr.P.C, the judge concerned has to consider only the record of the case and the document produced along with the same. If on such consideration, the Court formed an opinion that there is no sufficient ground to proceed against the accused concerned, he shall be discharged after recording the reasons therefor. It is also evident from the precedence on the aforesaid question that while exercising the said power, the Court could sift the materials produced along with the final report only for the purpose of considering the question whether there is ground to proceed against the accused concerned.

9. The further limitation that at the stage of framing of charge or considering the discharge application, the impermissibility of mini trial as laid down in State of Rajasthan vs. Ashok Kumar Kashyap - 2021 SCC OnLine SC 314 is being referred as under:

          "At the stage of framing of the charge and /or considering the discharge application, the mini trial is not permissible."

10. In CBI vs. Aryan Singh -2023 SCC Online SC 379 also, the same position of law has been reiterated. The relevant paragraph from the said judgment is extracted herein below:

          "Para 10 ....As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not."

11. Now come to the facts of this case, trial court has recorded the finding that victim was intimated the age of the persons involved in the incident are 25 years to 30 years and the looted amount has been recovered from the revision petitioner. The memo of arrest dated 27.12.2020 mentions the age of the revision petitioner as 25 years and the loan amount has been recovered from the co-accused person.

12. Perused the record.

13. In this case, there is no identification parade, no recovery has been effected from the present revision petitioner. No memo of information of the present revision petitioner/accused resulting into discovery of any fact has been recorded. Recovery of Rs.2,000/- from the co-accused person Vakeel@Gyan Singh is no material against the revision petitioner. Merely reference in the memo of the co-accused person or the age of the revision petitioner as 25 years is not sufficient to justify the framing of charge against the revision petitioner.

14. Accordingly, Criminal Revision succeed and is hereby allowed and order dated 28.03.2022 passed in Sessions Trial No.74 of 2020 by the learned II Additional Sessions Judge, Agar District Shajapur (M.P.) is hereby set aside. Revision petitioner/accused is acquitted from the charges under under section 394 of the IPC. Consequently his sentence is also set aside. His bail bonds are cancelled and sureties are discharged.

15. Record be remitted back to the courts below along with a copy of this order.