Point of law : The ambit and scope of exercise of power under Sections 227 and 228 of the Code, are fairly well settled. It has been consistently held that the standard of test and judgment which is to be finally applied before recording of finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of framing of charge. The test to be applied at this stage would be whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction.

JUDGMENT :

1. Heard Sri Vijai Prakash Tiwari, learned counsel for the applicant and Sri Arvind Kumar, learned Additional Government Advocate appearing for the State-opposite party no.1.

2. The present application under Section 482 CrPC has been filed seeking to quash the impugned orders dated 13.11.2019 and 16.11.2019 (annexure nos. 14 and 15) passed by the Additional District and Session Judge, Court No.9, Varanasi in Session Trial No. 300 of 2019 (State Vs. Ram Nayan Singh), Case crime No. 389 of 2018, under Section 3 of Prevention of Damage to Public Property Act, 1984, [PDPP Act], Police Station Cholapur, District Varanasi.

3. The facts of the case, as pleaded in the application, are to the effect that the criminal proceedings were initiated pursuant to an FIR dated 20.07.2018 lodged under Section 3/4 of the PDPP Act, registered as Case Crime No. 0389 of 2018. The case was investigated and a charge-sheet dated 19.11.2018 was submitted whereupon cognizance was taken on 24.1.2019 and an application seeking discharge was moved. The Magistrate passed an order dated 06.06.2019 rejecting the discharge application and committing the case to the court of session. Thereafter, upon an application under Section 228 (1) (a), the court of session passed an order dated 13.11.2019 wherein upon duly considering the facts of the case it was held that prima facie the offence under Section 3 of the PDPP Act was made out and accordingly 16.11.2019 was fixed for framing of charge and on the said date, charge was framed.

4. The principal submission which is sought to be raised is that the offence under Section 4 is not made out inasmuch as the ingredients of the said section are not satisfied.

5. Counsel for the applicant has also sought to assail the orders by referring to the factual aspects of the matter and the defence which is sought to be set up on behalf of the applicant.

6. Learned Additional Government Advocate submits that in terms of the order dated 16.11.2019, which is sought to be challenged, the applicant has been charged with the offence under Section 3 and not Section 4 of the PDPP Act. It is further pointed out that the allegation in the FIR, which relates to encroachment over public property, would come within the purview of the offence under Section 3 inasmuch as it would relate to a mischief causing damage to public property. In this regard, reliance has been placed upon a recent decision of this Court in Srikant vs. State of U.P., (2021) 0 Supreme (All) 519.

7. Learned Additional Government Advocate also submits that the contentions, which are sought to be raised on behalf of the applicant, would relate to disputed questions of fact, and would involve appreciation of evidence. It is submitted that at the stage of consideration of discharge only a prima facie case is to be seen and the court below is not expected to hold a mini trial.

8. In order to appreciate rival contentions, the relevant statutory provisions may be adverted to.

9. The procedure for trial before a court of session is provided under Chapter XVIII of the Cr.P.C. and Sections 227 and 228 which relate to discharge and framing of charges are extracted below.

“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.

228. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which—

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial M