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2008 DIGILAW 1282 (JHR)

Sunil Kumar v. State of Jharkhand

2008-11-18

AMARESHWAR SAHAY

body2008
Order Heard Mr. Deepak Kumar, learned counsel for the petitioner and Mr. Shekhar Sinha, A.P.P. for the State. 2. In this application the petitioner has challenged the order dated 18.11 .2002, passed by the Chief Judicial Magistrate, Koderma in G.R. Case No. 356/2002, taking cognizance of the offence under Section 395 IPC so far as against the petitioner is concerned. 3. The facts, in short, giving rise to this application are that one Uma Shankar Prasad lodged a first information report on 8.6.2002 before Koderma Police against the petitioner and some unknown persons, which was registered as Koderma P.S. Case No. 214/2002 alleging therein that on 2.6.2002 at about 10.45 A.M. he came back to his house on his Maruti Car after completing his work in the State Bank of India and, thereafter, in order to purchase household articles he parked his car. At that time six accused persons suddenly appeared and on the point of pistol they took him inside his house and over powered the entire family members as well as tenants and thereafter, committed dacoity in his house. The informant further alleged that his tenant R.K. Banerjee, who was an employee of L & T, Barhi, had hired a Commander Jeep belonging to the present petitioner Sunil Kumar who used to visit his house and he had come at the time of occurrence to handover the briefcase to Mr. Banerjee but he was also overpowered by the miscreants. It was further alleged that the miscreants fled away from the place of occurrence alongwith the petitioner on his vehicle. The petitioner, i.e. Sunil Kumar said to have again come back and offered different unsatisfactory explanation and, therefore, the informant suspected that the petitioner was also in connivance with the accused persons in commission of the dacoity. 4. The police in course of investigation did not find any evidence of the connivance of the petitioner in the alleged occurrence and, ultimately, submitted final report so far as against the petitioner is concerned but submitted the charge-sheet against six accused persons. 5. It appears that though final report was submitted by the police exonerating the petitioner but the learned trial court took cognizance of the offence under Section 395 IPC against the petitioner also alongwith other accused persons. 6. This order of taking cognizance by the trial court has been challenged by the petitioner in this application. 7. Mr. 5. It appears that though final report was submitted by the police exonerating the petitioner but the learned trial court took cognizance of the offence under Section 395 IPC against the petitioner also alongwith other accused persons. 6. This order of taking cognizance by the trial court has been challenged by the petitioner in this application. 7. Mr. Deepak Kumar, learned counsel appearing for the petitioner submitted that the cognizance taken for the offence under Section 395 IPC against the petitioner is concerned, is absolutely bad in law, since there was no material before the trial court for taking cognizance of the offence against him. Elaborating his argument he further submitted that if the trial court was not agreeing with the conclusion of the Investigating Officer and was differing with his opinion, then it was incumbent upon the learned Magistrate to assign reasons for the same. It was also incumbent upon the trial court to discuss even the prima facie materials against the petitioner which compelled him to differ with the findings of the Investigating Officer. 8. In spite of service of notice on the informant, he has not appeared. However the Investigating Officer has filed a counter affidavit through the counsel for the State, wherein it has been stated that no evidence or material was found against the petitioner in course of investigation so as to connect him with the offence alleged and, therefore, a final report was submitted in his favour. It has also been stated in the counter affidavit filed by the Investigating Officer that other six accused persons, who were charge-sheeted, were tried by the Court below and, thereafter, they have been acquitted by judgment dated 26.4.2008. 9. From perusal of the impugned order taking cognizance of the offence, I find that the learned Magistrate has not assigned any reason for coming to a different conclusion against the findings of the Investigating Officer. In the impugned order the trial court has not even mentioned as to what were the materials before him to come to the conclusion that there were prima facie materials for taking cognizance of the offence under Section 395 IPC against the petitioner. This is a serious lacuna in the order taking cognizance against the petitioner. 10. In this view of the matter, this application is allowed. This is a serious lacuna in the order taking cognizance against the petitioner. 10. In this view of the matter, this application is allowed. The order taking cognizance dated 18.11.2002 as well as the entire criminal prosecution against the petitioner in connection with G.A. Case' No. 356/2002 arising out of Koderma P.S. Case No. 214 of 2002 is hereby quashed.