At the stage of framing the charge, the court should consider the material on record and presume the truth of the prosecution's evidence. The court is not competent to assess the probative value of the evidence or appreciate the credibility of the witnesses at this stage.

( 1 ) HEARD Shri. Umesh Maheshwari, for the petitioners, Shri A. D. Upadhyaya, Panel Lawyer, for Prosecution. The material which has been collected by the investigation agency against the applicant has been considered.

( 2 ) IT is the case of the prosecution that on 20-6-1995 at about mid-night, all the applicants entered into the shop belonging to complainant Didar Ahmed and committed the theft of some of the furnitures which was stored in the said shop as well as the cash which was kept in cash box. Prosecution also alleged that all the applicants committed house breaking by night, in order to commit an offence punishable with imprisonment. Prosecution also alleged that they committed the offence punishable under Section 427 of I. P. C. by committing mischief, causing damage to the complainant above Rs. 50/ -. The FIR of complainant Didar Ahmed is dtd. 21-6-1995. In that FIR Didar Ahmed has alleged that Wasik Ali s/o Issac Ali and Thawar Ali s/o Haidar Ali alongwith four others had committed the house breaking by night for committing the theft of some of the furniture and cash which was stored in cash box. He has also alleged in the said FIR that those persons had committed the mischief and caused the damage to him which was more than Rs. 50/ -. The investigating officer carried the investigation and, thereafter, charge-sheet was filed against the applicants in the Court of Judicial Magistrate, First Class, Badwah.

( 3 ) SHRI Umesh Maheshwari, counsel far the applicants argued that no case has been 1997 Haider Ali v. State of M. P. 1411made out against the applicants punishable under provisions of Section 380 of I. P. C. and, therefore; the learned Magistrate has committed the error of framing the charge against the applicants for the offence. He submitted that the charge on that count needs to be set aside. He made reference to the statements of other witnesses recorded by the investigating agency in view of provisions of Section. 161 of Criminal Procedure Code, 1973 (hereinafter referred to as Code ).

( 4 ) SHRI A. D. Upadhyay, panel lawyer appearing for the prosecution placed reliance on the judgments of Supreme Court in the matters of following : (i) State of Maharashtra v. Som Nath Thapa reported in (1996) 4 JT (SC) 615 : (1996 Cri LJ 2448), (ii) Shri Satish Mehra v. Delhi Administration reported in JT 1996 (7) SC 6,and submitted that in view of the observations of Supreme Court in those judgments and the FIR of complainant Didar Ahmed, the learned Magistrate has rightly framed the charge against the applicants even for an offence punishable under Section 380 of I. P. C.

( 5 ) IN the matter of State of Maharashtra etc. etc. v. Shri Som Nath Thapa (1996 Cri LJ 2448), the Supreme Court has held that (Para 32) -"if on the basis of material on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed that offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record can not be gone into the materials brought on record by the prosecution has to be accepted as true at that stage. In the matter of Shri Satish Mehra v. Delhi Admn. (1996 (7) JT (SC) 6) (supra), the Supreme Court held that -"after proceeding in view of provisions of Section 226 of the Code, the next provisions (Section 227) of the Code enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of