A court must ascertain whether a prima facie case exists before framing charges against an accused, focusing on whether sufficient grounds are presented by the prosecution.

ORDER

Petitioners are two among the twelve accused in S.C. No.118 of 2018 pending in the court of the Sessions Judge, Ernakulam. In the final report the offences alleged are under Sections 120B , 201, 212, 342, 366, 376(D) and 506 IPC and Sections 66E and 67A of the Information Technology Act .

2. The incident on the basis of which the case was registered was the result of a conspiracy allegedly entered into between the first and eighth accused to commit rape on the victim and video the incident. As a consequence of it a conspiracy later took place involving the first accused and others excluding the petitioners, pursuant to which they abducted the victim and ravished her in a vehicle. They also recorded the incident on a mobile phone. In the final report initially filed by the investigating officer the petitioners were not arraigned as accused. According to the prosecution, in the further investigation involvement of the petitioners was revealed. Accordingly, a supplementary final report was filed. The petitioner in Crl.R.P. No.828 of 2018 is the 11^th accused and the petitioner in Crl.R.P. No.829 of 2018 is the 12^th accused in the case. The former is an Advocate practicing in this court and the latter an Advocate attached to the office of the former. They are charged with having harboured accused 1 and 4 with intent to screen the latter from legal punishment. According to the prosecution the first accused entrusted to the 11^th accused the mobile phone which he used to record the incident, and a memory card; the first accused also entrusted to him a bag containing the dress he was wearing during the incident; the 11^th accused handed over the phone and the memory card to the 12^th accused; they concealed the articles with the knowledge that they were material evidence in the case. Later, the 12^th accused broke up the mobile phone into pieces and threw them into the backwaters of Kochi with the intention of destroying the evidence; the police seized the bag and its contents and the memory card. The 11^th and 12^th accused filed applications under Section 227 Cr.P.C. for discharge. By the impugned order the learned Sessions Judge dismissed the applications. Its correctness is under challenge.

3. The case of the petitioners stands on a different footing from the case of the other accused and so the case of the former has to be considered independent of the case of the latter.

4. Sections 227 and 228 Cr.P.C. Should be read together.

They are extracted below:

S.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.

S.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 Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the tria