The framing of charges should be based on a prima facie opinion formed upon the materials before the court, and not on the standard of proof test applied at the final stage to determine guilt.

JUDGMENT :

A.K. SIKRI, J.

Leave granted.

2. In this appeal filed by the complainant, at whose instance FIR in question was registered, the appellant impugnes judgment and order dated May 4, 2017 passed by the High Court of Jammu and Kashmir. By the said judgment, the High Court has quashed the order dated August 9, 2014 passed by the trial court. The controversy in the present appeal is limited to the charge for which respondent Nos. 2 and 3 (hereinafter referred to as the ‘accused persons’) are to be tried for allegedly causing death of one Abdul Rashid on account of electrocution, under suspicious circumstances. It may be pointed out that FIR was registered against the accused persons under Section 304 of Ranbir Penal Code (hereinafter referred to as the ‘RPC’) for causing death by rash and negligent act. However, at the time of framing of charge, after looking into the record of the case, the Sessions Judge formed an opinion that the investigation prima facie establishes offence under Section 302 RPC (i.e. culpable homicide amounting to murder) and not under Section 304 RPC which had been wrongly invoked by the Investigating Officer at the conclusion of the trial. Thus, vide his order dated August 9, 2014, the Sessions Judge has framed charge under Section 302 of RPC. This order has been set aside by the High Court vide impugned judgment with the observations that prima facie there is no evidence on record to justify the charge under Section 302 of RPC.

3. A perusal of order dated August 9, 2014 records the prosecution case, and there is no dispute about the prosecution story as emerged in the investigation. Crux of prosecution story is that on October 18, 2013 at Mendhar, the accused Mohd. Azad and Nazir Hussain without any authority were on patrol duty to check the fault, with common criminal intention took the deceased Abdul Rashid with them at about 5 p.m. who was having no knowledge about the electricity and made him to stand on the transofrmer in order to cut the supply of the electricity and again made the said Abdul Rashid to stand on the said transformer at about 5.45 p.m. and agave a call to Habib-ul-Rehman alias Makhana at the Grid Station Chhattral to supply the electricity knowing the fact that due to supply of the electricity the said Abdul Rashid would be electrocuted and would die and accordingly the said Abdul Rashid received the electric current and died on spot as was intended and well within the knowledge of both the accused. After completion of the investigation, offence under Section 304/34 RPC were made out against each of the accused whereafter the challan was preferred before the court.

4. Based on the aforesaid facts and the evidence collected during investigation, the Sessions Judge noted that facts prima facie show that it was a fit case for framing charge under Section 302 RPC. Relevant discussion contained in order dated August 9, 2014 passed by the Sessions Court, while framing charge under Section 302 RPC, is as under:

“6. In the instant case, the fact that the deceased was made to stand on the transformer with the intention and knowledge of both the accused persons that by supplying electricity from the grid station the deceased would die as has been proved during the course of investigation. I have examined the statements of the prosecution witnesses recorded u/s 161 Cr.P.C. particularly, the statement of Habib-ul-Rehman alias Makhana who was called by the accused persons to supply the electricity and have also perused the relevant record including the medical report, and am of the opinion that the Investigating Officer has committed a mistake of law by framing his opinion that offence u/s 304 RPC is made out against the accused persons when from the perusal of all the documents u/s 173 Cr.P.C. culpable homicide amounting to murder punishable u/s 302 RPC is made out against both the accused persons. The Investigating Officer has appreciated the evidence which the court has to appreciate at the co