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2001 DIGILAW 72 (JHR)

Damodar Nath Ohdar v. State Of Bihar

2001-01-31

D.N.PRASAD

body2001
JUDGMENT D.N. Prasad, J. 1. This revision is directed against the order dated 7.12.1998 passed by the S.D.J.M., Ranch! in Complaint Case No. 142 of 1996 whereby and whereunder the learned S.D.J.M. discharged the accused-persons/opposite parties Nos. 2 to 5. 2. The case of the prosecution in brief as stated is that the complainant being the petitioner is the owner of the tank (Bandh) of Plot No. 1141 and has been in possession of the same for more than 30 years. The complainants father had taken the said tank by Hukumnama from ex-landlord in the year 1946 and accordingly the rent was paid to the ex-landlord prior to the vesting of Jamindari. The complainant used to rear fish in the tank and used to catch fishes without any disturbance. Last year the complainant also reared fishes about 2 kelo in the said tank. The accused persons, after forming unlawful assembly came to the said tank with deadly weapons and fished out about 10 mongs of fishes worth Rs. 1,00,000/-. The complainant also protested but the accused- persons chased to assault him and his witnesses. Accordingly the com- plaint case was filed and after inquiry under Section 202, Cr PC, cognizance was taken under Sections 147/379/448 of the Indian Penal Code. Four witnesses have also been examined before charge and all the witnesses supported the case of the complainant about the occurrence but the learned Magistrate discharged the accused-persons/opposite parties Nos. 2 to 5 without any basis and also illegally. 3. Learned counsel appearing on behalf of the petitioner submitted that all the witnesses examined before charge have supported the occurrence. It is further argued that the Court below has not considered the evidence of PWs and passed the impugned order discharging the accused-persons on flimsy grounds as the Court below cannot weigh the defence version at this stage but the photostat copy of the document filed by the opposite parties was relied upon, though those documents have not been-brought on record to be exhibited. It is also submitted that the tank in question belonged to the complainant/petitioner and has been coming in peaceful possession of the same but the learned Court below passed the impugned order on mere assumption though the said sale deed said to be forged and fabricated have never been examined or compared and as such the impugned order is fit to be set aside. 4. 4. The learned counsel also relied on the case of Lalbabu v. Daulat Ram Khanna and others, reported in 1980 BBCJ 508; and of State Bank of India v. Nakuljee Kamani, reported in 1997 (2) East Cr C 592 (Pat). 5. Learned counsel appearing on behalf-of the opposite parties Nos. 2 to 5 contended before me that there is no illegality in the impugned order as the learned Court below has rightly discharged the accused persons/opposite parties Nos. 2 to 5 as no physical posses-sion was given to the complainant. It is also submitted that the said tank was purchased by the father of the accused persons as far back, as in the year 1962 whereas the father of the complainant got a forged and fabricated sale deed with respect to the said land and the possession of the tank was also restored to the opposite parties Nos. 2 to 5. 6. Before appreciating the submissions made on behalf of both sides, it is pertinent to note Sections 245(1) and (2), Cr PC which are as follows : When accused shall be discharged : "(1) If, upon taking all the evidence referred to in Section 284, the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent to a Magistrate from discharging the accused at any previous stage of the case, if for reasons to be recorded by such Magistrate, he considers the charge to be groundless." 7. At this stage, it may be noted here that the Court below has never held in his impugned order that the charge is groundless rather he discharged the accused-persons on the sole ground that it is a bonafide land dispute and under bona fide belief the accused persons are the rightful owners and so they could have fished out fishes. It is evident that the learned Magistrate has not considered or referred the evidence of FWs 1 to 4, who were admittedly examined before charge in this case. From going through the evidence of PWs 1 to 4, it is clear that they have supported the prosecution case. It is also settled that the charge can even be framed on the material capable inferring strong suspicion. From going through the evidence of PWs 1 to 4, it is clear that they have supported the prosecution case. It is also settled that the charge can even be framed on the material capable inferring strong suspicion. In the instant case, the learned Magistrate has not weighed or considered the evidence of the PWs though they were examined before charge. The Magistrate while framing charge has merely to see whether the evidence recorded, if unrebutted, a case against the accused is made out. Moreover, the documents said to have been considered have not been brought on the record nor it has been exhibited. Thus the order of discharge passed by the learned Magistrate by drawing an inference by bona fide land dispute only between the parties is illegal and cannot be sustained in the eye of law. The learned Magistrate should have considered the evidence of PWs, who were examined before charge. It has been observed in the case of Lalbabu v. Daulat Ram Khanna, (supra) and others that the Magistrate had to examine the evidence of witnesses, who were examined and unrebutted, has made out a case against the accused persons. If it did not then the accused had to be discharged. But in case, the evidence so recorded, made out a case against the accused persons, then charges had to be framed. In the instant case, four witnesses have already been examined and their evidence has not been considered by the learned Magistrate at the stage of framing of charge, the Magistrate is not competent to consider defence evidence to pass discharge order. The legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed. Thus the learned Magistrate committed error in passing the impugned order without considering the evidence on record. 8. In the result, I find merit in this revision application which is fit to be allowed. Thus the order impugned dated 7.12.1998 is hereby set aside. 9. Revision allowed.