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1994 DIGILAW 173 (GAU)

State of Nagaland v. Temjen Jamir

1994-09-14

H.K.SEMA

body1994
This revision is directed against the order dated 15.3.93 passed by the learned e Judicial Magistrate First Class, Dimapur in GR Case No.573/91 whereby, the learned Court below discharged the accused/respondent purportedly in exercise of power under section 239 of the CrPC. 2. From the order dated 26.7.94, it appears that Mr. K. Meruno, learned counsel who represented the respondent in this revision petition has been withdrawn from the case for non-cooperation of the respondent. This fact was brought to the notice of the respondent by a notice dated 30th July, 1994. Despite of issuance of notice, the respondent has not made any alternative arrangement to represent its case. However, looking into the facts and circumstances of the case I propose to dispose of this revision petition on merit after perusing the records and materials available on record and after hearing Mr. I. Jamir, learned Public Prosecutor. 3. Section 239 of the CrPC empowers the Magistrate to discharge the accused in the event the learned Magistrate considers the charge against the accused to be ground less after recording his reasons for so doing (emphasis supplied). In the instant case, the learned Magistrate discharged the accused of an offence under section 406/418/423 IPC in exercise of the power conferred by section 239 of the CrPC. Theiorder discharging the accused runs as under : "After hearing the submission of the both learned Additional Public Prosecutor and the learned defence counsel the order was reserved. On perusal of the documents made available to me in the case records, the case diaries of the case, and the submissions, I am inclined to accept the submission made by the learned defence counsel and the rulings cited in the case that there are no grounds to preceed against the accused. In view of the above submissions I do hereby discharge the accused Temjen Jamir from the liabilities of this case GR 575 of 1991 under the provisions of section 239 of the Criminal Procedure Code. The bail granted to accused Temjen Jamir is also hereby discharge. 4. A bare perusal of the conclusion of the learned Court below, no reasons have been recorded as to how the learned Court below has come to that finding. The bail granted to accused Temjen Jamir is also hereby discharge. 4. A bare perusal of the conclusion of the learned Court below, no reasons have been recorded as to how the learned Court below has come to that finding. Section 239 of the Code specifically provides that the Magistrate is empowered to discharge the accused if in the opinion of the Magistrate the charges against the accused are groundless and he can do so after recording its reasons. Apart from non-disclosing of reasons, the lower Court record has been made available to this Court at the time of hearing of this petition. On perusal of the record and particularly the documents sent with it under section 173 of the CrPC there is sufficient materials to frame charges against the accused person for an offence under section 407/418/423 of the Indian Penal Code. 5. It is well settled principle of law that at the stage of framing ot charge even a strong suspicion founded on materials would be enough to frame charge against the accused person. In Supdt. & Remembrance, Legal Affairs, West Bengal vs. Anil Kumar Bhunja, AIR 1980 SC 52 , the Apex Court has held as under : *...... At the stage of framing charges, the prosecution evidence does not commence. The Magistrate has therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the investigating Police Officer. The standated test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of section 227 or 228. At this stage, even a very strong suspicion founded upon materials' before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence." 6. As Observed earlier, on perusal of the documents, particularly the document sent under section 173 of the CrPC, there is sufficient materials for presuming that the accused has committed an offence punishable under section 406/418/423 IPC. Therefore there was sufficient materials for framing charge against the accused person under section 240 of the CrPC. As Observed earlier, on perusal of the documents, particularly the document sent under section 173 of the CrPC, there is sufficient materials for presuming that the accused has committed an offence punishable under section 406/418/423 IPC. Therefore there was sufficient materials for framing charge against the accused person under section 240 of the CrPC. This apart, the learned Magistrate has discharged the accused without recording any reasons lor so doing in violation of the mandate of section 239 of the CrPC. This itsell is enough for setting aside the order dated 15.3.93 passed by the learned Judicial Magistrate First Class discharging the accused. 7. In the result, the order dated 15th March, 1993 passed by the learned Judicial Magistrate First Class in GR Case No.573/91 under section 406/418/ 423 IPC are hereby set aside. 8. It is submitted by Mr. I. Jamir, learned PP that looking into facts and circumstances of the case it would not be desirable to send back the record to the same Magistrate in the interest of justice. This submission of Mr. I. Jamir in my view deserve consideration for the interest of justice. 9. The case is now remitted to the Court of learned Additional Deputy Commissioner (J) Dimapur to dispose of the case in accordance with law. l0. Registry is directed to send hack the case record to the learned Additional Deputy Commissioner (J) Dimapur. On receipt of the record, the learned Additional Deputy Commissioner (J) shall issue a notice to the accused for fixing a date of hearing. 11. Considering the facts that the case is pending since 1991, the learned Additional Deputy Commissioner (J) is directed to dispose of the petition as expeditiously as possible preferably within a period of three months from the date of the receipt of the record. With the aforesaid direction, petition is allowed.