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2006 DIGILAW 502 (PAT)

Arun Kumar Pandey v. State Of Bihar

2006-06-21

REKHA KUMARI

body2006
Judgment Rekha Kumari, J. 1. This is an application u/s. 482 of the Code of Criminal Procedure, 1973 for quashing the order dated 14.10.2004 passed by the 5th Additional sessions Judge, Manger in Criminal Revision No. 291 of 2003 affiancing the order dated 2.6.2003 passed by the Judicial Magistrate, 1st Class, Munger in G.R. Case No. 188 of 2001 arising out of Kotwali P.S. Case No. 60 of 2001. 2. Heard. 3. It appears that the facts of the case need not be stated for the purpose in hand. It would be suffice to say that the Opposite party No. 2 Ravi Shankar Pandey filed a written report at Kotwali police station, Munger against the petitioner Arun Kumar Pandey and others for which Kotwali P.S. Case No. 50/2001 under sec. 341, 323, 370 read with sec. 34 of the Indian Penal Code was registered. The police investigated the case and after investigation submitted chargesheet under Section s 341, 325/34 of the Indian Penal Code, 1860 . The learned Chief Judicial Magistrate, Munger accordingly took a cognizance under Section s 341, 323/34 of the Indian Penal Code against the petitioner and two other accused persons. The case was ultimately transferred to the court of Sri S.K. Pandey, J.K. 1st Class, Munger. A petition was then filed in his Court by the petitioner for discharging him u/s. 239 Cr. P.C. The learned Magistrate heard both sides and after perusing the record held that there was sufficient material against the petitioner and others for framing charge. He accordingly by order dated 2.6.2003 rejected the prayer of the petitioner and posted the case for framing of charge. The petitioner preferred revision against that order. The learned 5th Additional Sessions Judge, Munger after bearing both sides, by the impugned order dismissed the revision petition. 4. The learned Counsel for the petitioner submitted that the Opposite Party No. 2, the informant, is the own cousin of the petitioner and ha is in the habit of lodging false criminal and civil cases against the petitioner and his family members. He has also filed a copy of judgment passed by Sri R. Malviya, J.M. 2nd Class, Munger dated 24.9.2003 in T.R. No. 546 of 2003 to show that Opposite Party No. 2 has filed the case against the petitioner and another under Section s 323 Indian Penal Code, 1860 in which the petitioner was acquitted. He has also filed a copy of judgment passed by Sri R. Malviya, J.M. 2nd Class, Munger dated 24.9.2003 in T.R. No. 546 of 2003 to show that Opposite Party No. 2 has filed the case against the petitioner and another under Section s 323 Indian Penal Code, 1860 in which the petitioner was acquitted. HE has also filed copy of order dated 6.10.1999 passed in complaint Case No. 605-C of 1999 to show that Visual Anand, the brother-in-law of Opposite Party No. 2 at the behest of Opp. Party No. 2 had filed the case which was dismissed u/s. 203 Cr. P.C. 5. The learned Counsel further submitted that Opposite Party No. 2 has filed a protest petition in this case and there is contradiction in the allegation made in the protest petition and the allegation made in the F.I.R. inasmuch as in the protest petition, It is stated that co-accused Pradeep Kumar Pandey had fired on the head of the Informant whereas there is no such allegation in the F.I.R. 6. Learned Counsel also submitted that Opposite Party No. 2 has (sic) instituted this criminal cast with a malicious purpose and the petitioner and others are entitled to be discharged. sec. 239 Cr. P.C. reads thus: 239. When accused shall be discharged If, upon considering the police report and the documents sent with it u/s. 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the (sic) accused, and record his reasons for so doing. 7. Therefore, It is evident that at this stage the Magistrate has only to consider the police report and the documents sent with it u/s. 173 Cr.P.C., he cannot consider the defence of the accused or the documents filed by the accused. It is also settled that the charge is groundless when there is no legal evidence. In support of the accusation brought or the facts do not make out any offence at all. But it is not the case of the petitioner that the facts do not Bake put any offence at all. The order of the learned Magistrate also shows that there is sufficient evidence in support of the allegation. 8. In support of the accusation brought or the facts do not make out any offence at all. But it is not the case of the petitioner that the facts do not Bake put any offence at all. The order of the learned Magistrate also shows that there is sufficient evidence in support of the allegation. 8. Therefore, I do not find any reason to Interfere with the impugned order. 9. It may also be mentioned here that the offences under Secs. 323 and 341 Indian Penal Code, 1860 are summons cases. Therefore, ordinarily the procedure for trial of summons cases under chapter XX would be applicable and no petition under Section 239 Cr. P.C. was maintainable in this case. It may further be Mentioned that the learned Counsel has also relied upon the decisions of the Supreme Court reported in A.I.R. 1998 S.C., 604 and A.I.R. 1992 S.C., 1815 but the decision are not applicable to the facts of this case. 10. In the result, I do not find may merit in this application. This application is, hereby, dismissed.