Himachal Pradesh High Court
State Of H.P vs Imtiaz Hashmi @ Bhura Khan on 14 July, 2026
2026:HHC:28408
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 332 of 2026
Reserved on: 23.06.2026
.
Date of Decision: 14.07.2026.
State of H.P. ...Petitioner
Versus
of
Imtiaz Hashmi @ Bhura Khan ...Respondent
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Petitioner : Mr Lokender Kutlehria,
Additional Advocate General,
For Respondent : Nemo
Rakesh Kainthla, Judge
The State has filed the present petition against the
order dated 08.09.2025 passed by learned Special Judge-I,
Sirmaur, District at Nahan, Himachal Pradesh (learned Trial
Court), vide which the respondent (accused before learned Trial
Court) was discharged. (The parties shall hereinafter be referred to in
the same manner as they were arrayed before the learned Trial Court
for convenience),
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
2
2026:HHC:28408
2. Briefly stated, the facts giving rise to the present
petition are that the police received secret information on
.
28.06.2024 that a vehicle bearing registration No. HP-77-9555
was transporting a huge quantity of cannabis. The police searched
the vehicle after completing the formalities and recovered 2.4 kg
of charas. Vipin Basu, Ashish Kumar and Manjeet Singh, the co-
of
accused, were travelling in the vehicle. They could not provide any
explanation for the possession of the quantity. Hence, the police
rt
arrested them and seized the charas. They disclosed during the
interrogation that Pramod Kumar had sent the consignment to
Manjeet Singh. Pramod Kumar disclosed during the interrogation
that some contraband was to be delivered to Imtiaz Hashmi, alias
Bhura Khan, the present respondent. The police obtained the call
detail record and found that Vipin Basu, Pramod Kumar and
Imtiaz Hashmi were in touch with each other on 28.06.2024, the
date of the recovery. Hence, the police arrested the petitioner and
filed the charge sheet against him and the other accused before
the Court.
3. The accused/respondent filed an application seeking
his discharge, asserting that there is no evidence to connect him
to the commission of the crime. A statement made by the co-
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
3
2026:HHC:28408
accused during the interrogation is inadmissible. The call detail
record is not sufficient to frame charges against him. Hence, he
.
prayed that he be discharged.
4. The application was opposed by filing a reply asserting
that the respondent was arrested based on the call detail record,
and the disclosure statement made by the co-accused. The Court is
of
not required to conduct a detailed inquiry or mini-trial. There was
sufficient material to frame the charges against the accused.
rt
Hence, it was prayed that the application seeking discharge be
dismissed.
5. Learned Trial Court held that the Court had to ascertain
whether a prima facie case was made against the accused for
putting him to trial. The prosecution was relying upon the
statement made by the co-accused, Pramod Kumar and the phone
calls. The statement made by the co-accused was not admissible,
and the phone calls were not sufficient to connect the respondent
to the commission of the crime. The phone call may give rise to a
suspicion. But the suspicion is not sufficient to frame charges.
Hence, the respondent/accused was discharged.
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
4
2026:HHC:28408
6. Being aggrieved by the order passed by the learned
Trial Court, the State has filed the present petition, asserting that
.
the learned trial Court failed to appreciate the fact that conspiracy
can be inferred from the circumstantial evidence. The burden
would shift upon the respondent under Sections 35 and 54 of the
NDPS Act to prove that he was not in possession. The discharge at
of
the premature stage defeats the legislative mandate. The direct
evidence seldom exists in the case of organised syndicate activity.
rt
The call detail record could not be discarded at the threshold;
therefore, it was prayed that the present petition be allowed, and
the order passed by the learned Trial Court be set aside.
7. I have heard Mr Lokender Kutlehira, learned Additional
Advocate General, for the petitioner/State.
8. None appeared on behalf of the respondent when the
matter was listed on 23.06.2026; hence, none could be heard on
his behalf.
9. Mr Lokender Kutlahria, learned Additional Advocate
General for the petitioner/State, submitted that the learned Trial
Court erred in discharging the respondent. The name of the
respondent was disclosed during the interrogation by the co-
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
5
2026:HHC:28408
accused. He was found in touch with the co-accused. Therefore,
there was sufficient material to frame charges, and the learned
.
Trial Court erred in discharging the respondent/accused. Hence,
he prayed that the present petition be allowed and the order
passed by the learned Trial Court be set aside.
10. I have given a considerable thought to the submissions
of
made at the bar and have gone through the records carefully.
11. It was laid down by the Hon’ble Supreme Court in State
rt
of Gujarat v. Dilip Singh Kishor Singh Rao, 2023 SCC OnLine SC 1294,
that the Judge has to determine whether or not sufficient grounds
exist to proceed against the accused on the basis of the material
placed before him. It was observed: –
“10. It is a 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 beenbrought 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 disclosethe existence of the ingredients necessary for the offence
alleged. This Court in State of Tamil Nadu v. N. Suresh Rajan,
(2014) 11 SCC 709, adverted to the earlier propositions of law
laid down on this subject, has held:
“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::: Downloaded on – 14/07/2026 20:33:46 :::CIS
6
2026:HHC:28408act as a 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 findingout whether the facts emerging therefrom, taken at
their face value, disclose the existence of all the
ingredients constituting the alleged offence. At thisof
stage, the 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
rt 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 madeout. 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, thecourt has to come to the conclusion that the accused
has committed the offence. The law does not permit a
mini-trial at this stage.”
11. 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 Cr.
P.C. 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.
12. The primary consideration at the stage of framing of
charge is the test of the existence of a prima facie case, and
at this stage, the probative value of materials on record
need not be gone into. This Court, by referring to its earlier
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
7
2026:HHC:28408
decisions in the State of Maharashtra v. Som Nath Thapa,
(1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni,
(2000) 6 SCC 338, has held that the nature of evaluation to
be made by the court at the stage of framing of the charge is
.
to test the existence of the prima facie case. It is also held at
the stage of framing of charge, the court has to form a
presumptive opinion on the existence of factual ingredients
constituting the offence alleged, and it is not expected to go
deep into the probative value of the material on record and
to check whether the material on record would certainly
lead to a conviction at the conclusion of the trial.
of
12. It was held in Vishnu Kumar Shukla vs. State of U.P., 2023
SCC OnLine SC 1582, that the Court has to see a prima facie case
rt
while framing the charges even in warrants cases instituted
otherwise than on a police report. It was observed: –
15. Although the instant case pertains to Trial of Warrant-
Cases by Magistrates and is a case instituted on a police
report, meaning Sections 239-240, CrPC are relevant, we
also propose to glance at Section 245, CrPC (concerning trial
of warrant-cases by Magistrates apropos cases instituted
otherwise than on police report), as also Sections 227-228,
CrPC, which pertain to Trial before a Court of Session.
16. The extent of scrutiny permissible when an application
for discharge is being considered has attracted this Court’s
attention on a number of occasions. It is appropriate to take
note of the leading precedents on the subject. Insofar as
Section 245, CrPC is concerned, the decision of this Court in
Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 is
instructive:
’19. The essential difference of procedure in the trial
of a warrant case on the basis of a police report and
that instituted otherwise than on the police report is
particularly marked in Sections 238 and 239 CrPC on
one side and Sections 244 and 245 CrPC on the other.
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
8
2026:HHC:28408
Under Section 238, when in a warrant case, instituted
on a police report, the accused appears or is brought
before the Magistrate, the Magistrate has to satisfy
himself that he has been supplied the necessary.
documents like the police report, FIR, statements
recorded under sub-section (3) of Section 161 CrPC of
all the witnesses proposed to be examined by the
prosecution, as also the confessions and statementsrecorded under Section 164 and any other documents
which have been forwarded by the prosecuting agency
to the court.
of
20. After that, comes the stage of discharge, for which it
is provided in Section 239 CrPC that the Magistrate has to
consider the police report and the documents sent with it
under Section 173 CrPC and if necessary, has to examine
rt
the accused and has to hear the prosecution of the
accused, and if on such examination and hearing, theMagistrate considers the charge to be groundless, he
would discharge the accused and record his reasons for so
doing. The prosecution at that stage is not required to
lead evidence. If, on examination of the aforementioneddocuments, he comes to the prima facie conclusion that
there is a ground for proceeding with the trial, he
proceeds to frame the charge. For framing the charge, hedoes not have to pass a separate order. It is then that the
charge is framed under Section 240 CrPC, and the trialproceeds for recording the evidence. Thus, in such a
trial, the prosecution has only one opportunity to lead
evidence, and that too comes only after the charge isframed.
Xxx
22. In the warrant trial instituted otherwise than the
police report, the complainant gets two opportunities
to lead evidence, firstly, before the charge is framed
and secondly, after the framing of the charge. Of
course, under Section 245(2) CrPC, a Magistrate can
discharge the accused at any previous stage of the
case, if he finds the charge to be groundless.
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
9
2026:HHC:28408
23. Essentially, the applicable sections are Sections
244 and 245 CrPC since this is a warrant trial
instituted otherwise than on police reports. There had
to be an opportunity for the prosecution to lead
.
evidence under Section 244(1) CrPC or to summon its
witnesses under Section 244(2) CrPC. This did not
happen, and instead, the accused proceeded to file an
application under Section 245(2) CrPC on the ground
that the charge was groundless.
24. Now, there is a clear difference in Sections 245(1)
and 245(2) of CrPC. Under Section 245(1), the
of
Magistrate has the advantage of the evidence led by
the prosecution before him under Section 244, and he
has to consider whether the evidence remains
unrebutted; the conviction of the accused would be
rt
warranted. If there is no discernible incriminating
material in the evidence, then the Magistrate
proceeds to discharge the accused under Section
245(1) CrPC.
25. The situation under Section 245(2) CrPC is,
however, different. There, under subsection (2), the
Magistrate has the power of discharging the accused
at any previous stage of the case, i.e. even before such
evidence is led. However, for discharging an accused
under Section 245(2) CrPC, the Magistrate has to
come to a finding that the charge is groundless. There
is no question of any consideration of evidence at that
stage because there is none. The Magistrate can take
this decision before the accused appears or is brought
before the court, or the evidence is led under Section
244 CrPC. The words appearing in Section 245(2) CrPC
“at any previous stage of the case” clearly bring out
this position.
Xxx
36. The Magistrate has the power to discharge the
accused under Section 245(2) CrPC at any previous
stage i.e. before the evidence is recorded under
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
10
2026:HHC:28408
Section 244(1) CrPC, which seems to be the
established law, particularly in view of the decision in
Cricket Assn. of Bengal v. State of W.B. [(1971) 3 SCC 239:
1971 SCC (Cri) 446], as also the subsequent decision of
.
the Bombay High Court in Luis de Piedade Lobo v.
Mahadev Vishwanath Parulekar [1984 Cri LJ 513 (Bom)].
The same decision was followed by the Kerala High
Court in Manmohan Malhotra v. P.M. Abdul Salam[1994 Cri LJ 1555 (Ker)], and Hon’ble Justice K.T.
Thomas, as the learned Judge then was, accepted the
proposition that the Magistrate has the power underof
Section 245(2) CrPC to discharge the accused at any
previous stage. The Hon’ble Judge relied on a decision
of the Madras High Court in Mohd. Sheriff Sahib v.
rtAbdul Karim Sahib [AIR 1928 Mad 129 (1)], as also the
judgment of the Himachal Pradesh High Court in
Gopal Chauhan v. Satya [1979 Cri LJ 446 (HP)].
37. We are convinced that under Section 245(2) CrPC,
the Magistrate can discharge the accused at any previous
stage, i.e. even before any evidence is recorded under
Section 244(1) CrPC. In that view, the accused could
have made the application. It is obvious that the
application has been rejected by the Magistrate. So
far, there is no difficulty.’ (emphasis supplied)
17. Turning to Sections 239-240, CrPC, this Court held as
under in Minakshi Bala v. Sudhir Kumar, (1994) 4 SCC 142:
‘6. Having regard to the fact that the offences, for which
the charge sheet was submitted in the instant case and
cognisance taken, were triable as a warrant case, theMagistrate was to proceed in accordance with Sections
239 and 240 of the Code at the time of framing of the
charges. Under the above sections, the Magistrate is first
required to consider the police report and the documents
sent with it under Section 173 CrPC and examine the
accused, if he thinks necessary, and give an opportunity
to the prosecution and the accused of being heard. If, on
such consideration, examination and hearing, the
Magistrate finds the charge groundless, he has to::: Downloaded on – 14/07/2026 20:33:46 :::CIS
11
2026:HHC:28408discharge the accused in terms of Section 239 CrPC;
conversely, if he finds that there is ground for presuming
that the accused has committed an offence triable by him,
he has to frame a charge in terms of Section 240 CrPC.
.
7. If charges are framed in accordance with Section
240 CrPC on a finding that a prima facie case has been
made out — as has been done in the instant case —
the person arraigned may, if he feels aggrieved,
invoke the revisional jurisdiction of the High Court or
the Sessions Judge to contend that the charge-sheet
submitted under Section 173 CrPC and documents sent
of
with it did not disclose any ground to presume that he
had committed any offence for which he is charged
and the revisional court if so satisfied can quash the
charges framed against him. To put it differently, once
rt
charges are framed under Section 240 CrPC, the High
Court in its revisional jurisdiction would not be justified
in relying upon documents other than those referred to in
Sections 239 and 240 CrPC; nor would it be justified in
invoking its inherent jurisdiction under Section 482 CrPC
to quash the same except in those rare cases where
forensic exigencies and formidable compulsions justify
such a course. We hasten to add that even in such
exceptional cases, the High Court can look into only those
documents which are unimpeachable and can be legally
translated into relevant evidence.
8. Apart from the infirmity in the approach of the
High Court in dealing with the matter which we have
already noticed, we further find that instead of
adverting to and confining its attention to the documents
referred to in Sections 239 and 240 CrPC the High Court
has dealt with the rival contentions of the parties raised
through their respective affidavits at length and on a
threadbare discussion thereof passed the impugned order.
The course so adopted cannot be supported; firstly,
because finding regarding the commission of an offence
cannot be recorded on the basis of affidavit evidence and
secondly, because at the stage of framing of charge, the
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
12
2026:HHC:28408
Court cannot usurp the functions of a trial court to delve
into and decide upon the respective merits of the case.’
(emphasis supplied)
18. With great respect, we express our reservations in fully
.
acceding to what has been stated above. If Paragraph 8 of
Minakshi Bala (supra) is accepted as it is, the necessary
concomitant would be that, despite examining the matter in
detail, a Court would find its wings clipped to intercede.
This would amount to forcing a person to stand trial, even
when the overwhelming material points to his/her
innocence. Obviously, the hands of a Court ought not to be
of
tied down, and especially not by a higher Court, and more so
not against liberty. Paragraph 7 of Minakshi Bala (supra)
does enable examining unimpeachable documents. We are
conscious that Minakshi Bala (supra) has been followed in
rt
later decisions by the Court. However, we have chosen to
survey the precedents further and then decide on the road
we wish to take.
19. In Rumi Dhar v. State of West Bengal, (2009) 6 SCC 364,
this Court held that the Judge concerned with an application
under Section 239, CrPC has to ‘… go into the details of the
allegations made against each of the accused persons so as to
form an opinion as to whether any case at all has been made
out or not as a strong suspicion in regard thereto shall subserve
the requirements of law.’
20. In State of Tamil Nadu v. N Suresh Rajan, (2014) 11 SCC
709, it was observed that, notwithstanding the difference in
the language of Sections 227 and 239, CrPC, the approach of
the Court concerned is to be common under both provisions.
The principles holding the field under Sections 227 and 228,
CrPC are well-settled, courtesy, inter alia, State of Bihar v.
Ramesh Singh, (1977) 4 SCC 39; Union of India v. Prafulla K
Samal, (1979) 3 SCC 4; Stree Atyachar Virodhi Parishad v. Dilip
N Chordia, (1989) 1 SCC 715; Niranjan Singh Karam Singh
Punjabi v. Jitendra B Bijjaya, (1990) 4 SCC 76; Dilawar B
Kurane v. State of Maharashtra, (2002) 2 SCC 135; Chitresh K
Chopra v. State (Government of NCT of Delhi), (2009) 16 SCC
605; Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460;
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
13
2026:HHC:28408
Dinesh Tiwari v. State of Uttar Pradesh, (2014) 13 SCC 137;
Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16
SCC 547; and State (NCT of Delhi) v. Shiv Charan Bansal,
(2020) 2 SCC 290. We need only refer to some, starting with
.
Prafulla K Samal (supra), where, after considering Ramesh
Singh (supra), K P Raghavan v. M H Abbas, AIR 1967 SC 740
and Almohan Das v. State of West Bengal, (1969) 2 SCR 520, it
was laid down as under:
’10. Thus, on consideration of the authorities
mentioned above, the following principles emerge:
(1) That the Judge, while considering the question
of
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
rt against the accused has been made out.
(2) Where the materials placed before the Court
disclose a 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 ofeach 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, while giving rise tosome 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::: Downloaded on – 14/07/2026 20:33:46 :::CIS
14
2026:HHC:28408case, 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 were conducting a
trial.'(emphasis supplied)
13. It was laid down by the Hon’ble Supreme Court in
Vishnu Kumar Shukla v. State of U.P., (2023) 15 SCC 502: 2023 SCC
of
OnLine SC 1582 that the Court framing the charges has to see a
prima facie case. It is impermissible to examine the material
rt
threadbare to determine whether the accused is likely to be
convicted or not. It was observed:
“12. The primary consideration at the stage of framing of
charge is the test of the existence of a prima facie case, andat this stage, the probative value of materials on record
need not be gone into. This Court, by referring to its earlier
decisions in the State of Maharashtra v. Som Nath Thapa,(1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni,
(2000) 6 SCC 338, has held that the nature of evaluation tobe made by the court at the stage of framing of the charge is
to test the existence of the prima facie case. It is also held at
the stage of framing of charge, the court has to form apresumptive opinion on the existence of factual ingredients
constituting the offence alleged, and it is not expected to go
deep into the probative value of the material on record and
to check whether the material on record would certainly
lead to a conviction at the conclusion of the trial.
14. It was held in Ram Prakash Chadha v. State of U.P.,
(2024) 10 SCC 651: (2025) 1 SCC (Cri) 253: 2024 SCC OnLine SC 1709
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
15
2026:HHC:28408
that the Court can sift and weigh the evidence to determine if a
prima facie case exists against the accused. It was observed at page
.
661:
“24. In the light of the decisions referred supra, it is thus
obvious that it will be within the jurisdiction of the Courtconcerned 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 ofof
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,
rt
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, (2000) 5 SCC 679: 2000 SCC (Cri) 1014. Taking note ofthe 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 Courtwhile considering an application under Section 227CrPC, to
weigh the pros and cons of the evidence alleged
improbability and then proceed to discharge the accusedholding that the statements existing in the case therein are
unreliable. It is held that doing so would be practicallyacting under Section 232 CrPC, even though the said stage
has not been reached. In short, though it is permissible to
sift and weigh the materials for the limited purpose offinding 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
232 CrPC, available only after taking the evidence for the
prosecution and examining the accused.
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
16
2026:HHC:28408
15. It was held in Yuvraj Laxmilal Kanther v. State of
Maharashtra, 2025 SCC OnLine SC 520, that the Court is not to
.
undertake a threadbare analysis of the material but to see if there
is sufficient material to frame charges. It was observed:
“16. Section 227 CrPC deals with discharge. What Section
227 CrPC contemplates is that if, upon consideration of the
record of the case and the documents submitted therewith
of
and after hearing the submissions of the accused and the
prosecution in this behalf, the judge considers that there
are no sufficient grounds for proceeding against the
accused, he shall discharge the accused and record his
rt
reasons for doing so. At the stage of consideration of
discharge, the court is not required to undertake a
threadbare analysis of the materials gathered by the
prosecution. All that is required to be seen at this stage is
that there are sufficient grounds to proceed against the
accused. In other words, the materials should be sufficient
to enable the court to initiate a criminal trial against the
accused. It may be so that at the end of the trial, the accused
may still be acquitted. At the stage of discharge, the court is
only required to consider whether there are sufficient
materials that can justify the launch of a criminal trial
against the accused. By its very nature, a discharge is at a
higher pedestal than an acquittal. Acquittal is at the end of
the trial process, may be for a technicality or on the benefit
of doubt, or the prosecution could not prove the charge
against the accused; but when an accused is discharged, it
means that there are no materials to justify the launch of a
criminal trial against the accused. Once he is discharged, he
is no longer an accused.”
16. It was held in Tuhin Kumar Biswas v. State of W.B., 2025
SCC OnLine SC 2604, that if there is a suspicion as opposed to a
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
17
2026:HHC:28408
grave suspicion, the Court has to discharge the accused. It was
observed:
.
15. This Court has recently in Ram Prakash Chadha v. State of
UP (2024) 10 SCC 651 : (2025) 1 SCC (Cri) 253, cited with
approval earlier decisions of this Court in Stree Atyachar
Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715:
1989 SCC (Cri) 285; P. Vijayan v. State of Kerala, (2010) 2 SCC
398 : (2010) 1 SCC (Cri) 1488; and Union of India v. Prafulla
Kumar Samal, (1979) 3 SCC 4: 1979 SCC (Cri) 609 as under:–
of
“21. In the decision in Stree Atyachar Virodhi Parishad v.
Dilip Nathumal Chordia [Stree Atyachar Virodhi Parishad v.
Dilip Nathumal Chordia, (1989) 1 SCC 715: 1989 SCC (Cri)
285], this Court held that the word “ground” in Section
rt
227 CrPC did not mean a ground for conviction, but a
ground for putting the accused on trial.
22. In P. Vijayan v. State of Kerala [P. Vijayan v. State of
Kerala, (2010) 2 SCC 398: (2010) 1 SCC (Cri) 1488], after
extracting Section 227 CrPC, 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 on 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.
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
18
2026:HHC:28408
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.”
23. In para 13 in P. Vijayan case [P. Vijayan v. State of
Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488], this
of
Court took note of the principles enunciated earlier by
this Court in Union of India v. Prafulla Kumar Samal
[Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4:
1979 SCC (Cri) 609] which reads thus: (Prafulla Kumar
rt
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 outwhether or not a prima facie case against the accused
has been made out.
(2) Where the materials placed before the Court
disclose a 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, while giving rise to some suspicion but
not grave suspicion against the accused, he will be
fully within his right to discharge the accused.
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
19
2026:HHC:28408
(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 were
of
conducting a trial.”
16. In M.E. Shivalingamurthy v. Central Bureau of
Investigation Bengaluru, (2020) 2 SCC 768: (2020) 1 SCC (Cri)
811, this Court has held as under: —
rt
“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 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 thestatements 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 the offence, then,
there will be no sufficient ground for proceeding with
the trial”.
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
20
2026:HHC:28408
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
of
prosecution has to be accepted as true.
17.8. There must exist some materials for entertaining
rtthe strong suspicion that 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).
The expression, “the record of the case”, used in Section
227 CrPC, is to be understood as the 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).”
(emphasis supplied)
17. Consequently, at the stage of discharge, a strong
suspicion suffices. However, a strong suspicion must be
found on some material which can be translated into
evidence at the stage of trial.
17. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
21
2026:HHC:28408
18. Learned Trial Court held that the statement made by
the co-accused is inadmissible and cannot be used to frame
.
charges. No fault can be found with the finding recoded by the
learned Trial Court. It was laid down by the Hon’ble Supreme
Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019)
16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a
of
statement made by an accused during the investigation is hit by
Section 162 of Cr.P.C. and cannot be used as a piece of evidence. It
rt
was also held that the confession made by the co-accused is
inadmissible under Section 25 of the Indian Evidence Act. It was
observed at page 568: –
44. Such a person, viz., the person who is named in the FIR,
and therefore, the accused in the eye of the law, can indeed
be questioned, and the statement is taken by the police
officer. A confession that is made to a police officer wouldbe inadmissible, having regard to Section 25 of the Evidence
Act. A confession, which is vitiated under Section 24 of theEvidence Act, would also be inadmissible. A confession,
unless it fulfils the test laid down in Pakala Narayana Swami
[Pakala Narayana Swami v. King Emperor, 1939 SCC OnLinePC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by
this Court, may still be used as an admission under Section
21 of the Evidence Act. This, however, is subject to the bar of
admissibility of a statement under Section 161 CrPC.
Therefore, even if a statement contains an admission, the
statement being one under Section 161, it would
immediately attract the bar under Section 162 CrPC.”
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
22
2026:HHC:28408
19. It was held in Surinder Kumar Khanna vs Intelligence
Officer Directorate of Revenue Intelligence 2018 (8) SCC 271 that a
.
confession made by a co-accused cannot be taken as a substantive
piece of evidence against another co-accused and can only be
utilised to lend assurance to the other evidence. The Hon’ble
Supreme Court subsequently held in Tofan Singh Versus State of
of
Tamil Nadu 2021 (4) SCC 1 that a confession made to a police
officer during the investigation is hit by Section 25 of the Indian
rt
Evidence Act and is not saved by the provisions of Section 67 of the
NDPS Act. It was held in Karan Talwar vs. State of Tamil Nadu 2024
SCC Online SC 3803 that the confession made by the co-accused
does not constitute an incriminating matter sufficient to frame
charges against him. It was observed:
“10. As is evident from the said Section, the alleged offence
is the consumption of a narcotic drug or psychotropicsubstance other than those specified in or under clause (a)
of Section 27, NDPS Act, and therefore, the question is
whether any material is available to charge the appellantthereunder. The contention of the appellant is that he has
been arraigned as accused No. 13 based on the confession
statement of co-accused, viz., accused No. 1. Certainly, in
the absence of any other material on record to connect the
appellant with the crime, the confession statement of the
co-accused by itself cannot be the reason for his
implication in the crime. This view has been fortified by the
law laid down in Suresh Budharmal Kalani v. State of
Maharashtra (1998) 7 SCC 337; 1998 INSC 364, wherein it was::: Downloaded on – 14/07/2026 20:33:46 :::CIS
23
2026:HHC:28408stated that a co-accused’s confession containing
incriminating matter against a person would not by itself
suffice to frame a charge against him. The materials on
record would reveal that the investigating agency had not.
subjected him to medical examination, and instead, going
by the complaint, Witness No. 23, he smelled the accused.
The less said, the better, and we do not think it necessary to
comment upon the adoption of such a course. We need onlyto say that even if he tendered such evidence, it would not
help the prosecution in any way. There is absolutely no case
that any contraband was recovered from the appellant. Asof
regards the confession statement of the appellant in view of
Section 25 of the Indian Evidence Act, 1872, there can be no
doubt with respect to the fact that it is inadmissible in
evidence. In this context, it is worthy to refer to the decision
rt
of this Court in Ram Singh v. Central Bureau of Narcotics
(2011) 11 SCC 347; 2011 INSC 342. In the said decision, thisCourt held that Section 25 of the Indian Evidence Act would
make a confessional statement of the accused before police
inadmissible in evidence, and it could not be brought on
record by the prosecution to obtain a conviction. Shortlystated, except for the confessional statement of co-accused
No. 1, there is absolutely no material available on record
against the appellant.
11. When this be the position, the question is whether the
two Courts were justified in holding that there is a primafacie case against the appellant to proceed against him. In
this contextual situation, it is relevant to refer to the
decision of this Court in Dipakbhai Jagadishchandra Patel v.
State of Gujarat (2019) 16 SCC 547; 2019 INSC 568. Paragraphs
23 and 24 of the said decision are relevant for the purpose
of this case, and they read thus: —
“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::: Downloaded on – 14/07/2026 20:33:46 :::CIS
24
2026:HHC:28408be the material that is produced and relied upon by
the prosecution. The s 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
that the court must be satisfied that, with the materialsavailable, a case is made out for the accused to stand
trial. A strong suspicion suffices. However, a strong
suspicion must be founded on some material. Theof
material must be such as can be translated into evidence
at the stage of trial. The strong suspicion cannot be a
pure subjective satisfaction based on the moral notions of
rt 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 somematerial which commends itself to the court as
sufficient to entertain the prima facie view that the
accused has committed the offence. (emphasis
supplied)
24. Undoubtedly, this Court has in Suresh Budharmal Kalani
[Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7
SCC 337], taken the view that a confession by a co-accusedcontaining incriminating matter against a person would not
by itself suffice to frame a charge against it. We mayincidentally note that the Court has relied upon the
judgment of this Court in Kashmira Singh v. State of M.P.
[Kashmira Singh v. State of M.P., (1952) 1 SCC 275]. We noticethat the observations, which have been relied upon, were
made in the context of an appeal that arose from the
conviction of the appellant therein after a trial. The same
view has been followed undoubtedly in other cases where
the question arose in the context of a conviction and an
appeal therefrom. However, in Suresh Budharmal Kalani
[Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7
SCC 337], the Court has proceeded to take the view that only::: Downloaded on – 14/07/2026 20:33:46 :::CIS
25
2026:HHC:28408on the basis of the statement of the co-accused, no case is
made out, even for framing a charge.”
12. As noted hereinbefore, the sole material available
.
against the appellant is the confession statement of the co-
accused, viz., accused No. 1, which undoubtedly cannot
translate into admissible evidence at the stage of trial and
against the appellant. When that be the position, how can it
be said that a prima facie case is made out to enable the
appellant to stand the trial? There can be no doubt with
respect to the position that standing the trial is an ordeal
and, therefore, in a case where there is no material at all
of
which could be translated into evidence at the trial stage, it
would be a miscarriage of justice to make the person
concerned stand the trial.”
20.
rt
The prosecution has relied upon call detail records to
connect the petitioner to the commission of a crime; however, the
call detail records do not constitute any legally admissible
evidence in the absence of details about what was said by the
parties. The Delhi High Court held in Shyam Gupta v. State, 2023
SCC OnLine Del 1490, that it is impermissible to frame charges
based on the call detail record. It was observed:
“12. From the above observations, it is apparent that the
learned Special Judge had proceeded to frame a charge qua
petitioner no. 3 on the basis of CDR, which reflected that all
three accused persons were in regular contact on 15.09.2016
and 18.09.2016 (the date of apprehension of accused Shyam
Gupta and Saurabh Kumar).
13. Admittedly, there is no conversation recorded with
respect to the aforesaid calls. A perusal of the chargesheet
would reflect that the reliance on the CDR is being placed in
the background of the disclosure statement made by the::: Downloaded on – 14/07/2026 20:33:46 :::CIS
26
2026:HHC:28408co-accused, Shyam Gupta and Saurabh Kumar, as well as
the disclosure given by the petitioner no. 3. Needless to
state, these disclosure statements are inadmissible in
nature.
.
14. The Hon’ble Supreme Court, in Dilawar Balu Khurane v.
State of Maharashtra, (2002) 2 SCC 135, has observed that
while framing charges, the Judge has the power to ascertainwhether the materials on record disclose ‘grave suspicion’
against the accused, which has not been explained. It has
been held as under:
of
“12. Now the next question is whether a prima facie
case has been made out against the appellant. In
exercising powers under Section 227 of the Code of
rtCriminal Procedure, the settled position of law is that
the Judge while considering the question of framing
the charges under the said section has the undoubtedpower 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; where
the materials placed before the court disclose gravesuspicion 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 if two views are equally possible and theJudge 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
justified to discharge the accused, and in exercisingjurisdiction under Section 227 of the Code of Criminal
Procedure, the Judge 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 but should not make a roving enquiry
into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial (see Union of::: Downloaded on – 14/07/2026 20:33:46 :::CIS
27
2026:HHC:28408India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979
SCC (Cri) 609]).”
15. Applying the aforesaid principle to the facts of the
.
present case, it is clear that the only evidence against
petitioner no. 3 is the CDR, which may create a suspicion
but not a grave suspicion. If one examines the CDR sans
disclosure statement, then there is nothing on record to
link the said calls to the recovery in question. There is no
other material placed on record by the prosecution in the
chargesheet to support the allegations against the present
petitioner with respect to her involvement with the
of
contraband allegedly recovered from the co-accused
persons. No recovery was effected from the petitioner’s
number. 3 or at her instance.”
21.
rt
It was submitted that the conspiracy is hatched in
secrecy, and it is difficult to get the evidence to connect a person
with the conspiracy. This submission will not help the prosecution
because it is for the prosecution to collect the evidence showing
the conspiracy, and a person cannot be put on trial simply because
of some suspicion.
22. It was submitted that the offences involving narcotics
affect society adversely, and the learned Trial Court erred in
discharging the respondent/accused. This submission will also
not help the prosecution. It is trite to say that the fouler the crime,
the stricter the proof. The Court cannot be swayed by the nature of
the crime to frame the charges against an innocent person simply
because the nature of the crime is heinous, and the burden is upon
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
28
2026:HHC:28408
the prosecution to bring on record material to justify the framing
of the charges.
.
23. In the present case, no such material was brought on
record, and the learned Trial Court was justified in discharging the
accused.
24. No other point was urged.
of
25. In view of the above, there is no infirmity in the order
passed by the learned Trial Court; hence, the present petition fails,
rt
and it is dismissed. Pending applications, if any, also stand
disposed of.
(Rakesh Kainthla)
Judge
14th , July 2026.
(ravinder)
::: Downloaded on – 14/07/2026 20:33:46 :::CIS
