Whether court should consider the merits of the case at the time framing of charge or while hearing discharge application?

Having considered the reasoning given by the High Court and the

grounds which are weighed with the High Court while discharging the

accused, we are of the opinion that the High Court has exceeded in its

jurisdiction in exercise of the revisional jurisdiction and has acted beyond

the scope of Section 227/239 Cr.P.C. While discharging the accused,

the High Court has gone into the merits of the case and has considered

whether on the basis of the material on record, the accused is likely to

be convicted or not. For the aforesaid, the High Court has considered in

detail the transcript of the conversation between the complainant and the

accused which exercise at this stage to consider the discharge

application and/or framing of the charge is not permissible at all. As

rightly observed and held by the learned Special Judge at the stage of

framing of the charge, it has to be seen whether or not a prima facie

case is made out and the defence of the accused is not to be

considered. After considering the material on record including the

transcript of the conversation between the complainant and the accused,

the learned Special Judge having found that there is a prima facie case

of the alleged offence under Section 7 of the PC Act, framed the charge

against the accused for the said offence. The High Court materially

erred in negating the exercise of considering the transcript in detail and

in considering whether on the basis of the material on record the

accused is likely to be convicted for the offence under Section 7 of the

PC Act or not. As observed hereinabove, the High Court was required to

consider whether a prima facie case has been made out or not and

whether the accused is required to be further tried or not. At the stage of

framing of the charge and/or considering the discharge application, the

mini trial is not permissible. At this stage, it is to be noted that even as

per Section 7 of the PC Act, even an attempt constitutes an offence.

Therefore, the High Court has erred and/or exceeded in virtually holding

a mini trial at the stage of discharge application. {Para 11}






Diary No. 8524/2020

State of Rajasthan Vs Ashok Kumar Kashyap

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