Patna High Court
Mukesh KumarversusState Of Bihar and Anr
- Decided
- Disposal
- DISMISSED
- Bench
- SANDEEP KUMAR
Holding
The Court held that the trial court was correct in rejecting the discharge petition as there were sufficient grounds for proceeding against the appellant under Section 227 of the CrPC.
Summary
The appellant Mukesh Kumar challenged the trial court’s order rejecting his discharge petition under Section 227 of the CrPC in a murder case where his brother‑in‑law was killed. The FIR named other persons, but the appellant argued he was not named and was falsely implicated due to village politics. The State contended that three witnesses identified the appellant and that he was involved in the crime. The High Court examined the legal standards for discharge, citing Supreme Court precedents on prima‑facie evidence and the meaning of “sufficient ground for proceeding.” It held that the trial court correctly considered the witness statements and found sufficient grounds to proceed, and therefore the discharge petition could not be entertained. Consequently, the appeal was dismissed without commenting on the merits of the trial.
Issues considered
- Whether the trial court erred in rejecting the discharge petition under Section 227 CrPC.
- Whether the material on record establishes sufficient grounds for proceeding against the appellant.
- Interpretation of ‘sufficient ground’ and ‘prima facie case’ in the context of discharge applications.
- Whether the appellant’s non‑naming in the FIR precludes liability.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 202, 203, 227, 232
Subjects
- discharge petition
- Section 227 CrPC
- prima facie case
- murder
- evidence
- FIR
- caste based violence
- criminal procedure
- trial
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4823 of 2018
Arising Out of PS. Case No.-20 Year-2018 Thana- KHUSRUPUR District- Patna
======================================================
Mukesh Kumar, son of Devendra Singh, Resident of Village - Baikatpur, P.S.-
Khusrupur in the District – Patna.
... ... Appellant
Versus
1. State Of Bihar
2. Munna Kumar Paswan Son of Vishwanath Paswan Resident of Village -
Baikatpur Devi Asthan, P.s.- Khusrupur, District - Patna
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Raj Kumar, Advocate
For the State : Mr. Binay Krishna, Spl. P.P.
For the Respondent No.2 : Mr. Rajen Sahay, Advocate
Mr. Raj Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
C.A.V. JUDGMENT
Date : 28-01-2026
In this appeal, the appellant has challenged the
order dated 01.11.2018 passed by the learned District &
Sessions Judge, IV-cum-Special Judge, S.C./S.T. Patna, by
which the learned Judge has rejected the discharge petition filed
by the appellant.
2. As per the F.I.R. on the date of occurrence,
one Praduman Singh came to the house of the informant at
about 2:00 P.M. and requested the brother of the informant
(Chotu Kumar) to drop him to the market, since his own vehicle
was out of order. Thereafter, the brother of the informant along
with said Praduman Singh and the informant went to the market
and while they were near a bamboo orchard (Tara Baba ke
Bagicha) the said Praduman Singh asked the brother of the
Patna High Court CR. APP (SJ) No.4823 of 2018 dt.28-01-2026
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informant to stop the vehicle. As soon as, the brother of the
informant, stopped the motorcycle, 5-7 persons surrounded
them and one Bholu Singh shot at the brother of the informant
in the head. It has also been alleged that at that time one Vikas
Singh, Doman Singh and Raj Kumar Singh and 3-4 other
persons whom the informant can identify but does not know
their names were also present. Thereafter, the informant in order
to save his life raised hulla and ran towards his house and
informed his family members about the incident and when the
informant and his family members came at the place of
occurrence they saw that the body of the brother of the
informant was laying there. Thereafter, the brother of the
informant was taken to the hospital where the doctor declared
him dead. It has also been alleged that the accused persons used
to torture the informant and his family members by taking their
caste name.
3. Learned counsel for the appellant submits
that the appellant is not named in the F.I.R. and he has falsely
been implicated in this case merely on the basis of the statement
of the witnesses. He further submits that the appellant and the
informant belong to the same village and because of village
politics he has falsely been implicated in this case though he
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was not present at the place of occurrence.
4. It has been submitted by learned counsel for
the appellant that one Bholu Singh had fired upon the brother of
the informant and as a result of which, he died and while the
informant side were going towards the alleged place of
occurrence, they saw the appellant and other persons who were
working in the field and started assaulting the appellant and
Doman Singh, at that time, the police came there and took them
to the police station. The appellant and co-accused were taken
under custody by the police on the same day of occurrence
before lodging the F.I.R.
5. It has also been submitted that the appellant
is not named in the F.I.R. but the informant in his further
statement has taken the name of the appellant that he was
present at the place of occurrence. Further, though the father of
the informant and one Vikram Paswan were not eye witnesses to
the occurrence, but they have stated in their statements that the
appellant and other accused persons were seen fleeing from the
place of occurrence.
6. Learned APP for the State and learned
counsel for the respondent no.2 have opposed this appeal and
submitted that it is a case of murder and three witnesses in their
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statements have specifically stated that the appellant is involved
in the crime. They have also submitted that the accused persons
including the appellant have also tortured the informant and his
family members since they were the members of S.C./S.T.
community.
7. I have considered the submissions of the
parties and perused the materials available on record.
8. The present application has been filed
assailing the order rejecting discharge petition preferred by the
present appellant.
9. It would be apposite to refer the law laid
down by the Hon’ble Supreme Court in the case of State of
Bihar vs. Ramesh Singh, reported as (1977) 4 SCC 39.
Paragraph no.5 of the aforesaid decision reads as under :-
“5. In Nirmaljit Singh Hoon v. State of West Bengal
[(1973) 3 SCC 753]-Shelat, J. delivering the
judgment on behalf of the majority of the Court
referred at p. 79 of the report to the earlier
decisions of this Court in Chandra Deo Singh v.
Prokash Chandra Bose [AIR 1963 SC 1430]-
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
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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”. Illustratively, Shelat, J., further
added “Unless, therefore, the Magistrate finds
that the evidence led before him is self-
contradictory, or intrinsically untrustworthy,
process cannot be refused if that evidence makes
out a prima facie case”.(emphasis supplied)
10. Recently, the Hon’ble Supreme Court in the
case Ram Prakash Chadha vs. State of U.P., reported as
(2024) 10 SCC 651 has held as under:-
“15. Section 227 CrPC, reads thus:
“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.”
16. We have already considered the meaning of the
expression “the record of the case and the
documents submitted therewith” relying on the
decision in Debendra Nath Padhi case [State of
Orissa v. Debendra Nath Padhi, (2005) 1 SCC
568 : 2005 SCC (Cri) 415] only to reassure as to
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what are the materials falling under the said
expression and thus, available for consideration
of an application filed for discharge under
Section 227CrPC. In the light of the same, there
cannot be any doubt with respect to the position
that at the stage of consideration of such an
application for discharge, defence case or
material, if produced at all by the accused,
cannot be looked at all. Once “the record of the
case and the documents submitted therewith” are
before the Court they alone can be looked into for
considering the application for discharge and
thereafter if it considers that there is no sufficient
ground for proceeding against the accused
concerned then he shall be discharged after
recording reasons therefor. In that regard, it is
only appropriate to consider the authorities
dealing with the question as to what exactly is the
scope of consideration and what should be the
manner of consideration while exercising such
power.
17. The decision in Yogesh v. State of Maharashtra
(2008) 10 SCC 394, this Court held that the
words “not sufficient ground for proceeding
against the accused” appearing in Section
227CrPC, postulate exercise of judicial mind on
the part of the Judge to the facts of the case
revealed from the materials brought on record
by the prosecution in order to determine
whether a case for trial has been made out.
18. In the decision in State of T.N. v. N. Suresh Rajan
(2014) 11 SCC 709 this Court held that at a stage
of consideration of an application for discharge,
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the Court has to proceed with an assumption
that the materials brought on record by the
prosecution are true, and evaluate the materials
to find out whether the facts taken at their face
value disclose the existence of the ingredients
constituting the offence. At this stage, only the
probative value of the materials has to be gone
into and the court is not expected to go deep into
the matter to hold a mini-trial.
19. In the decision in B.K. Sharma v. State of U.P.
1987 SCC OnLine All 314, the High Court of
Judicature at Allahabad held that the standard of
test and judgment which is finally applied before
recording a finding of conviction against an
accused is not to be applied at the stage of
framing the charge. It is just a very strong
suspicion, based on the material on record, and
would be sufficient to frame a charge.
20. We are in agreement with the said view taken by
the High Court. At the same time, we would add
that the strong suspicion in order to be sufficient
to frame a charge should be based on the
material brought on record by the prosecution
and should not be based on supposition,
suspicions and conjectures. In other words, in
order to be a basis to frame charge the strong
suspicion should be the one emerging from the
materials on record brought by the prosecution.
21. In the decision in Stree Atyachar Virodhi Parishad
v. Dilip Nathumal Chordia [(1989) 1 SCC 715],
this Court held that the word “ground” in
Section 227CrPC, did not mean a ground for
conviction, but a ground for putting the accused
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on trial.
22. In P. Vijayan v. State of Kerala [(2010) 2 SCC 398]
, after extracting Section 227CrPC, this Court in
paras 10 and 11 held thus: (SCC pp. 401-402)
“10. … 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
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the court which ex facie disclose that
there are suspicious circumstances
against the accused so as to frame a
charge against him.”
23. In para 13 in P. Vijayan case P. Vijayan v. State of
Kerala, (2010) 2 SCC 398, this Court took note of
the principles enunciated earlier by this Court in
Union of India v. Prafulla Kumar Samal (1979) 3
SCC 4, which reads thus: (Prafulla Kumar Samal
case [Union of India v. Prafulla Kumar Samal,
(1979) 3 SCC 4:1979 SCC (Cri) 609] , SCC p. 9,
para 10)
“10. … (1) That the Judge while
considering the question of framing the
charges under Section 227 of the Code
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.
(2) 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.
(3) 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. By
and large however if two views are
equally possible and the Judge is satisfied
that the evidence produced before him
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while giving rise to some suspicion but not
grave suspicion against the accused, he
will be fully within his right to discharge
the accused.
(4) That in exercising his jurisdiction
under Section 227 of the Code 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.”
24. In the light of the decisions referred supra, it is
thus obvious that it will be within the jurisdiction
of the Court concerned to sift and weigh the
evidence for the limited purpose of finding out
whether or not a prima facie case against the
accused concerned has been made out. We are of
the considered view that a caution has to be
sounded for the reason that the chances of going
beyond the permissible jurisdiction under Section
227CrPC, and entering into the scope of power
under Section 232CrPC, cannot be ruled out as
such instances are aplenty. In this context, it is
relevant to refer to a decision of this Court in Om
Parkash Sharma v. CBI [Om Parkash Sharma v.
CBI, (2000) 5 SCC 679]. Taking note of the
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language of Section 227CrPC, is in negative
terminology and that the language in Section
232CrPC, is in the positive terminology and
considering this distinction between the two, this
Court held that it would not be open to the Court
while considering an application under Section
227CrPC, to weigh the pros and cons of the
evidence alleged improbability and then proceed
to discharge the accused holding that the
statements existing in the case therein are
unreliable. It is held that doing so would be
practically acting under Section 232CrPC, even
though the said stage has not reached. In short,
though it is permissible to sift and weigh the
materials for the limited purpose of finding out
whether or not a prima facie case is made out
against the accused, on appreciation of the
admissibility and the evidentiary value such
materials brought on record by the prosecution is
impermissible as it would amount to denial of
opportunity to the prosecution to prove them
appropriately at the appropriate stage besides
amounting to exercise of the power coupled with
obligation under Section 232CrPC, available
only after taking the evidence for the prosecution
and examining the accused.
25. Even after referring to the aforesaid decisions, we
think it absolutely appropriate to refer to a
decision of the Madhya Pradesh High Court in
Kaushalya Devi v. State of M.P [2003 SCC
OnLine MP 672] It was held in the said case that
if there is no legal evidence, then framing of
charge would be groundless and compelling the
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accused to face the trial is contrary to the
procedure offending Article 21 of the Constitution
of India. While agreeing with the view, we make it
clear that the expression “legal evidence” has to
be construed only as evidence disclosing prima
facie case, “the record of the case and the
documents submitted therewith.” (emphasis
supplied)
11. In Sajjan Kumar vs. CBI reported as (2010)
9 SCC 368, the Hon’ble Supreme Court had cautioned against
accepting every document produced by the prosecution on face
value, and held that it was important to sift the evidence
produced before the Court. The Hon’ble Supreme Court had
observed that:-
“21. On consideration of the authorities about the
scope of Sections 227 and 228 of the Code, the
following principles emerge:
***
(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
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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.”
12. Summarising the principles on discharge
under Section 227 Cr.P.C, in Dipakbhai Jagdishchandra Patel
vs. State of Gujarat & Anr. reported as (2019) 16 SCC 547, the
Hon’ble Supreme Court had held as under :-
“23. At the stage of framing the charge in accordance
with the principles which have been laid down by
this Court, what the court is expected to do is, it
does not act as a mere post office. The court must
indeed sift the material before it. The material to
be sifted would be the material which is produced
and relied upon by the prosecution. The sifting is
not to be meticulous in the sense that the court
dons the mantle of the trial Judge hearing
arguments after the entire evidence has been
adduced after a full-fledged trial and the question
is not whether the prosecution has made out the
case for the conviction of the accused. All that is
required is, the court must be satisfied that with
the materials available, a case is made out for
the accused to stand trial. A strong suspicion
suffices. However, a strong suspicion must be
Patna High Court CR. APP (SJ) No.4823 of 2018 dt.28-01-2026
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founded on some material. The material must be
such as can be translated into evidence at the
stage of trial. The strong suspicion cannot be the
pure subjective satisfaction based on the moral
notions of the Judge that here is a case where it is
possible that the accused has committed the
offence. Strong suspicion must be the suspicion
which is premised on some material which
commends itself to the court as sufficient to
entertain the prima facie view that the accused
has committed the offence.” (emphasis supplied)
13. The Hon’ble Supreme Court in M.E.
Shivalingamurthy vs. CBI, reported as (2020) 2 SCC 768 had
culled out the principles and held as under:-
“Legal principles applicable in regard to an application
seeking discharge
17. This is an area covered by a large body of case
law. We refer to a recent judgment which has
referred to the earlier decisions viz. P.
Vijayan v. State of Kerala [P. Vijayan v. State of
Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri)
1488] and discern the following principles:
17.1. If two views are possible and one of them gives
rise to suspicion only as distinguished from grave
suspicion, the trial Judge would be empowered to
discharge the accused.
17.2. The trial Judge is not a mere post office to frame
the charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in
order to find out whether or not there is sufficient
ground for proceeding. Evidence would consist of
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the statements recorded by the police or the
documents produced before the Court.
17.4. 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
offence, then, there will be no sufficient ground
for proceeding with the trial.
17.5. It is open to the accused to explain away the
materials giving rise to the grave suspicion.
17.6.The court has to consider the broad probabilities,
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,
would not entitle the court to make a roving
inquiry into the pros and cons.
17.7.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.
17.8.There must exist some materials for entertaining
the strong suspicion which can form the basis for
drawing up a charge and refusing to discharge
the accused.
18. The defence of the accused is not to be looked into
at the stage when the accused seeks to be
discharged under Section 227 CrPC (see State of
J&K v. Sudershan Chakkar [State of J&K v.
Sudershan Chakkar, (1995) 4 SCC 181 : 1995
SCC (Cri) 664 : AIR 1995 SC 1954]). The
expression, “the record of the case”, used in
Section 227 Cr.PC, is to be understood as the
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documents and the articles, if any, produced by
the prosecution. The Code does not give any right
to the accused to produce any document at the
stage of framing of the charge. At the stage of
framing of the charge, the submission of the
accused is to be confined to the material
produced by the police (see State of Orissa v.
Debendra Nath Padhi (2005) 1 SCC 568.”
14. The Hon’ble Supreme Court in the case of
State of Gujarat vs. Dilipsinh Kishoresinh Rao reported as
(2023) 17 SCC 688 has held as under:-
“10. It is settled principle of law that at the stage of
considering an application for discharge the
court must proceed on an assumption that the
material which has been brought on record by
the prosecution is true and evaluate said
material in order to determine whether the facts
emerging from the material taken on its face
value, disclose the existence of the ingredients
necessary of the offence alleged.
11. This Court in State of T.N. v. N. Suresh Rajan
adverting to the earlier propositions of law laid
down on this subject has held: (SCC pp. 721-22,
para 29)
29. We have bestowed our consideration
to the rival submissions and the
submissions made by Mr Ranjit Kumar
commend us. True it is that at the time of
consideration of the applications for
discharge, the court cannot act as a
mouthpiece of the prosecution or act as a
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post office and may sift evidence in order
to find out whether or not the allegations
made are groundless so as to pass an
order of discharge. It is trite that at the
stage of consideration of an application
for discharge, the court has to proceed
with an assumption that the materials
brought on record by the prosecution are
true and evaluate the said materials and
documents with a view to find out
whether the facts emerging therefrom
taken at their face value disclose the
existence of all the ingredients
constituting the alleged offence. At this
stage, probative value of the materials
has to be gone into and the court is not
expected to go deep into the matter and
hold that the materials would not
warrant a conviction. In our opinion,
what needs to be considered is whether
there is a ground for presuming that the
offence has been committed and not
whether a ground for convicting the
accused has been made out. To put it
differently, if the court thinks that the
accused might have. committed the
offence on the basis of the materials on
record on its probative value, it can
frame the charge; though for conviction,
the court has to come to the conclusion
that the accused has committed the
offence. The law does not permit a mini
trial at this stage."
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12. The defence of the accused is not to be looked
into at the stage when the accused seeks to be
discharged. The expression "the record of the
case" used in Section 227 CrPC is to be
understood as the documents and articles, if any,
produced by the prosecution. The Code does not
give any right to the accused to produce any
document at the stage of framing of the charge.
The submission of the accused is to be confined to
the material produced by the investigating
agency.” (emphasis supplied)
15. From the afore-quoted decisions, it is
abundantly clear that it is not proper for the Court to undertake
a threadbare roving enquiry to consider the merits of the case at
the stage of considering the discharge application of the
accused. The Court is not to assess whether there exist
sufficient grounds for conviction, which is a much higher
threshold, but rather only to assess whether sufficient grounds
for proceeding against the accused are made out or not.
16. In the present case, though the appellant is
not named in the F.I.R. but from a perusal of the impugned
order it appears that the trial court while rejecting the
application for discharge had considered the statements of the
witnesses in paragraph nos. 2, 4, 13 and 75 of the case diary, in
which the witnesses have categorically taken the name of the
appellant and have stated that he was involved in the crime.
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17. In the considered opinion of this Court, none
of the arguments put forth on behalf of the appellant merits
interference. At the cost of repetition, it is stated that the Court,
at the stage of considering an application for discharge, is not
expected to undertake a meticulous enquiry to assess the
probative value of evidence and establish grounds of
conviction. What the Court is required to assess is whether
there are sufficient grounds for proceeding against the accused.
18. In view of the above, this Court does not
find any illegality or infirmity with the impugned order by
which the discharge petition preferred by the appellant was
rejected by the trial Court. Accordingly, this appeal is
dismissed.
19. Needless to state that this Court has not
expressed any opinion on the merits of the case and the Trial
Court shall proceed with the trial independently based on the
merits of the case.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R.
CAV DATE 11.11.2025
Uploading Date 28.01.2026
Transmission Date 28.01.2026
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