1. This revision is directed against order of discharge dated 20-8-1981, recorded by Sri Naseem Uddin, learned IVth Additional Sessions Judge, Aligarh in Sessions Trial No. 468 of 1980.
2. It appears that Prakash Chand, Ravi Lal and Jagdish Prasad were committed to the Court of Session by Magistrate concerned for the offences under Secs. 302/34, 201 and 120B of Penal Code in Crime No. 135 of 1976. The aforesaid trial related to the murder of one K.C Banerjee on 27-11-1975 in train, while travelling from Satna Railway station to Delhi along with Jagdish Prasad Prakash Chand and one Khandelwal and his dead body was found in the railway compartment of 13 up Upper India Express at Khurja within the police station of G.R.P, Aligarh, on 28-11-1975, The doctor, who conducted the post mortem examination, sent the viscera for chemical analysis through the office of Chief Medical Officer by two Jars 64 and 65 containing bottles No. 8073 and 6659. These bottles were sealed up in presence of Deputy Chief Medical Officer in Box No. 1191 and that box in sealed up condition was sent to the Chemical Examiner who, on analysis, found that viscera contained poison known as zinc phosphite. The investigation was conducted by C.I.D police.
3. It transpired that the chemical examiner had not conducted the analysis of the contents received through bottles Nos. 8073 and 6659 but of other bottles from-Box No. 1191 bearing Nos. 2147 and 6931. The investigating agency did not shift their stand on the point that viscera was sent through bottles Nos. 2147 and 6934. They still maintained that the viscera was sent through bottles 8073 and 6659. The accused successfully argued before the trial court that the viscera related to some other persons and was not the viscera of Sri K.C Banerjee and thus as the death of Sri K.C Banerjee through poisoning was not made out, no conviction under Sec. 302, IPC could be possible even if the flimsy circumstantial evidence relied upon, by prosecution was believed.
4. Learned Sessions Judge scrutinised the entire material before him on record placed by prosecution and found that the prosecution had absolutely no chance to establish the case against the accused as the murder of K.C Banerjee was not made out; there was nothing on record to connect the accused with the crime. Thus the order of discharge was recorded.
5. Learned counsel for the State argued that learned Sessions Judge over stepped his jurisdiction in discharging the accused. S. 227 of Criminal P.C is worded below:—
“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.”
6. Thus, the expression used in the Section that “there is not sufficient ground for proceeding” means that no responsible person could come to a conclusion that there is any ground whatsoever to sustain the charge against the accused.
7. This point came up for consideration in Ram Pal v. State, reported in 1979 All WC 352 where it was held that if there was strong suspicion against the accused, the order of discharge should not be recorded.
8. In Union of India v. Prafulla Kumar Samal, reported in (1979) 3 SCC 4 : AIR 1979 SC 366, it was observed:—
“In exercising his jurisdiction under S. 227 the 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 into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
9. In State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 : AIR 1977 SC 1489, it was observed:—
“It is clear from S. 227 of the new Code that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he came to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused……..”
10. Thus, the prosecution could have succeeded by showing that there was grave suspicion against the accused. The mere showing of some suspicion against the accused could not justify their trial.
11. In the instant case, it has been shown that the main ingredient of S. 302, IPC viz., the murder of K.C Banerjee on the date, time and place of occurrence through poisoning was not shown by the material on record and so there was absolutely no chance of the conviction of the accused under Sec. 302, IPC.
12. Similarly, the charges of conspiracy or causing disappearance, of the evidence of murder were not sustainable, on the material collected by the prosecution in the case. Learned Sessions Judge has carefully analysed the entire material and rightly found that there was absolutely no ground for proceeding against the accused and framing any charge against them. Thus the conclusion by learned Sessions Judge cannot be regarded as unsound.
13. The last contention put forward by learned A.G.A was that on the date of discharge, their counsel applied for adjournment. That application was not disposed of as some other persons appeared as Public Prosecutor on that date it has prejudiced the State. This point was neither raised in the grounds put forward in the memo of revision nor that application was ever pressed before the learned Sessions Judge as is obvious from the perusal of order dated 20-8-1981 on the order sheet. Under such circumstances. I do not find that it is a fit case for interference by this Court. Thus the revision is dismissed. The notices issued to opposite parties are discharged.
14. Revision dismissed.