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2000 DIGILAW 1199 (PAT)

Manvendra Pandey v. State Of Bihar

2000-10-24

S.N.PATHAK

body2000
Judgment 1. This miscellaneous application has been filed seeking quashing of the order dated 6.10.1999 by which the SubDivisional Judicial Magistrate, Sheikhpura refused to discharge the petitioner from the case. 2. Petitioners lawyer submitted that in G.R.No. 1/99 a prayer was made before the S.D.J.M., who was holding trial of the case, for discharge of the petitioner on the ground that the case is of the civil nature. This prayer was rejected and hence this miscellaneous case. 3. It was submitted before me that the lands in question were mutated in favour of the petitioner who is the cognate of the informant of the case before the S.D.J.M. and a proceeding under Section 144 Cr.P.C. also ended in favour of the petitioner. There was also a title suit pending between the parties. Hence it was a case of bonafide dispute over the land. Therefore, the S.D.J.M. was competent to consider the facts alleged by the petitioner and the papers supporting his allegations and pass an appropriate order of discharge instead of directing him to face trial. 4. Before I consider the plea of the petitioner raised in this miscellaneous case, I would like to refer to the case of the informant-opposite party as contained in Annexure 1 of this miscellaneous case. On the basis of a written report of Awdhesh Kishore Pandey (Annexure 1) a case was registered in the concerned police station and after cognizance chargesheet was submitted and the case was pending trial when the impugned order was passed. However, on perusal of the written report, it transpires that the complainant-informant had alleged that the crops of his share were stacked in the khalihan (barn) and this paddy crop was taken away by the accused persons including the petitioner and so admittedly it was allegedly a case of theft. The contention of the petitioners lawyer is concerned with certain plots of land which was the subject matter of dispute between the parties leading to the proceeding under Section 144 Cr.P.C. However, it was further admitted during the course of submissions by the petitioners lawyer that a Mutation Appeal was also pending against the order of the Circle Officer. Be that as it may, it was not a case in which there was an allegation of forcible harvesting of paddy crops from a plot in dispute. Be that as it may, it was not a case in which there was an allegation of forcible harvesting of paddy crops from a plot in dispute. The simple question was that the paddy crop of the share of the informant was looted away by the accused persons. So the fact regarding the share of the informant, as claimed by him, was to be proved during the course of trial upon the evidence adduced and it would be very well disproved by the evidence on behalf of the accused persons against the informant. The allegations in the counterclaim in this connection cannot be decided by this court on mere submissions of the petitioners lawyer. Petitioners lawyer in this connection had further argued that the learned Magistrate was wrong in his approach and he was competent to consider the papers produced by the accused regarding the disputed plots. This question is irrelevant as there is no allegation jn this case regarding harvesting of crops from the disputed land. Nevertheless I shall give my opinion whether the court erred in not considering the papers produced by the petitioner. Admittedly, the mutation paper which was under appeal was a controver-ciaI document and moreover the court at the time of framing of charge is not bound to rely on the papers produced before it. Only such papers which are admitted documents or the documents not in dispute may be considered which may clinch the issue in favour of this and that party, and no other papers. Therefore, I am further of the opinion that the contention of the petitioners lawyer that the lower court failed to consider his clinching papers is not acceptable. 5. The decisions referred to by the petitioners lawyer in this connection are worth mentioning. The learned lawyer referred to the decision of the Hon ble Supreme Court reported in A.I.R. 1998 SC, 128 in which it was held that the power under section 482 Cr.P.C. can be exercised by the High Court when no case at all is made out by the complainant in the preliminary evidence adduced during the course of enquiry under Section 202 Cr.P.C. I find that the facts of this case are not applicable to the facts under consideration by this Court. It is the ratio decidendi which is to be followed by any court and the decisions passed in particular facts and circumstances of the case may not be applicable to every other facts and circumstances of any other case. 6. The learned lawyer referred to another decision reported in 1999 (1) Cr.L.J., 762. In this case it was alleged that the paddy crops were harvested from a particular field and a complaint case was filed in this connection. There was no evidence that the complainant was in possession of the concerned plot. So the facts of this case are also not relevant to the facts of the case under consideration by this Court. 7. Another case reported in 1999 (3) P.L.J.R. page 875 was lastly referred to by the petitioners lawyer. In this case it was held by the Hon ble Single Judge of this Court that the materials produced by the accused at the stage of framing of charge which is clinching to the issue in question is to be considered by the trial court. I have already stated above that only those papers and documents can be considered which are almost admitted or which are not in dispute and no other papers can be considered without the same being proved in accordance with the proper procedure of law. So I am sorry not to agree with the decision laid down in the aforesaid case by the Single Judge of this Court. If all kinds of papers which may or may not be genuine, produced by the accused are considered at the time of framing of charge, it may lead to miscarriage of justice and unscrupulous litigants may produce such papers which may be forged or of suspicious character. So only those papers which are undisputed can be considered. In the instant case the document of mutation was subject to appeal and hence it could not be considered by the trial court. Moreover, as I have already stated above, there was no allegation of theft from any land in dispute between the parties, rather it was a case of theft of paddy belonging to the share of the informant. This fact could only be proved or disproved by the evidence on record. So I am of the opinion that the learned Magistrate was justified in refusing prayer of the petitioner for his discharge from the case. This fact could only be proved or disproved by the evidence on record. So I am of the opinion that the learned Magistrate was justified in refusing prayer of the petitioner for his discharge from the case. In the result, this miscellaneous case is dismissed.