JUDGMENT :

Ananya Bandyopadhyay, J.

1. The instant criminal revisional application is preferred against an order dated 29.01.2013 passed by the Learned Additional Sessions Judge, 3rd Fast Track Court, Lalbagh, Murshidabad in Sessions Serial No. 23 of 2010, pending before the Learned Additional Sessions Judge, 3rd Fast Track Court, Lalbagh, Murshidabad, arising out of Nabagram Police Station Case No. 136 of 2007 dated 26.11.2007 under Sections 302/34 of the Indian Penal Code, thereby rejecting the discharge petition in connection with the aforesaid case.

2. The instant criminal revisional application precisely stated that the petitioner was not named in the First Information Report and had no role to play with regard to the commission of the offences as alleged or at all.

3. Upon conclusion of a purported investigation, the Investigating Agency submitted a charge-sheet being charge-sheet No.151/2008 dated 03.12.2008 under Sections 302/34 of the Indian Penal Code against 6 persons including the present petitioner.

4. The petitioner has been on bail in connection with the instant case.

5. The petitioner filed an application for discharge under Section 227 of the Code of Criminal Procedure before the Learned Additional Sessions Judge, 3rd Fast Track Court, Lalbagh, Murshidabad.

6. By the impugned order dated 29.01.2013, the Learned Additional Sessions Judge, 3rd Fast Track Court, Lalbagh, Murshidabad rejcected the prayer for discharge of the petitioner and fixed 04.03.2013 as the next date for consideration of charge.

7. The Learned Judge while passing the impugned order dated 29.01.2013 failed to appreciate the absence of incriminating materials against the petitioner to prima facie constitute offences under Sections 302/34 of the Indian Penal Code, disregarding the fact that graver the offences alleged against, the greater must be the degree of proof to necessitate a person to stand a trial.

8. The Learned Advocate for the appellant submitted that the Learned Trial Judge in the impugned order dated 29.01.2013 himself recorded that the Learned Public Prosecutor candidly submitted there were no materials available on record to justify framing of charge under Sections 302/34 of the Indian Penal Code against the petitioner. Notwithstanding the same, an opinion was conceived though there may not be any materials available against the petitioner under Sections 302/34 of the Indian Penal Code, still a charge may be framed against him under Sections 302/120B of the Indian Penal Code. Such finding indicated mechanical approach in deciding the discharge petition filed by the petitioner without appreciating that mere “suspicion” was not enough to frame charge against an accused but it should be a “grave suspicion” and the same was absent qua the petitioner in the instant case.

9. Presumptive opinion as to the existence of the factual ingredients constituting the offences either under Sections 302/34 of the Indian Penal Code or under Sections 302/120B of the Indian Penal Code is unjustified and therefore framing of charge against the present petitioner in respect of the commission of those offences is unsustainable.

10. It was further argued that in case of existence of two views and the evidence produced before the Learned Trial Judge gave rise to "suspicion" only as distinguished from "grave suspicion", the Learned Trial Judge ought to have discharged the accused and relied upon the decisions cited as follows :

In Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra, 2008 (10) SSC 394, the Hon’ble Supreme Court observed as follows :

“20. The basic ingredients of the offence of criminal conspiracy are:

(i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is