Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 330 (JHR)

Rujesh Nandan v. State of Jharkhand

2008-03-17

D.K.SINHA

body2008
Order This Criminal Revision is directed against the impugned order dated 6.10.2007 passed by Sri. Y.C. Verma, Judicial Magistrate, 1st Class, Ranchi in G.R.No. 2465 of 2003 arising out of Kotwali (Daily Market) P.S. Case No. 442 of 2003 whereby and whereunder the learned Judicial Magistrate reiterated his previous order dated 10.4.2007 which was set aside by this Court by order dated 27.9.2007 passed in Cr. Rev. No. 339 of 2007 with certain observation. 2. The fact of the case in short was that the Daily Market Police, Ranchi raided one Akashdeep Hotel on 5.9.2003 in the noon with two independent witnesses and apprehended six persons from a room of the Hotel including the petitioner. In course of search, a sum of Rs. 3,00,000/-" was recovered from one Santosh Kumar. Cell phones were recovered from Ajay Kumar @ Prakash Kumar and Rajni Kant but no incriminating article was recovered from the possession of the petitioner and two others on search. Yet, in course of interrogation, it was gathered by the informant Police Officer that the persons apprehended were members of the gang of cheaters having deceptive intention used to collect money illegally from the guardians of the students willing to get their admission in Medical and Engineering Colleges. Ajay Kumar @ Prakash Kumar in course of interrogation confessed before the police that he had for the admission of his younger brother Alok Kumar in the medical college contacted the co-accused Santosh Kumar some 3-4 months ago and the latter had assured for the admission of his younger brother in the Medical College on (illegal) payment of Rs. 3.5. Lakhs to which he agreed. Pursuant to that his younger brother Alok Kumar passed the medical entrance test examination and thereafter to complete such deal, Ajay Kumar @ Prakash Kumar with the petitioner Rujesh Kumar and another Ajay Kumar who was the middle man went to Santosh Kumar and met him in Akashdeep Hotel. He was inclined to pay only 3 lakh but the same was accepted by Santosh Kumar and during raid and search such amount was recovered from the possession of Santosh Kumar. FIR was instituted against named accused including the petitioner. 3. Mr. He was inclined to pay only 3 lakh but the same was accepted by Santosh Kumar and during raid and search such amount was recovered from the possession of Santosh Kumar. FIR was instituted against named accused including the petitioner. 3. Mr. Rajesh Kumar, the learned counsel, submitted that the petitioner was in attendance in the court of Sri Y.C. Verma, Judicial Magistrate, 1st Class, Ranchi on 16.10.2007 and the case was adjourned to 18.12.2007 as no prosecution witness was in attendance. The petitioner's lawyer after obtaining adjourned date left the court room but it was gathered that after sometime on the same day the trial court received the copy of the order of this Court dated 27.9.2007 passed in Cr. Rev. No. 339 of 2007 wherein the trial court was directed to pass an order afresh on the materials available on the record on the petition of the petitioner under section 239 of the Code of Criminal Procedure in accordance with law within four weeks. Mr. Rajesh Kumar, the learned counsel submitted that though there was ample time to inform the counsel for the petitioner, but after perusal of the order, the trial court on the same day passed a fresh order without according opportunity to the petitioner of being heard and it was not a fact though it was found in the 2nd paragraph of the order sheet that the order was passed after hearing both the parties. 4. The petitioner immediately filed a protest petition when he came to know on the same date about the order passed in his absence on 16.10.2007 with the copy to the APP with the submission that the same may be kept on the record and to pass appropriate order. 5. The learned counsel pointed out that during the pendency of the Cr. Rev. No. 339 of 2007 before this Court against the impugned order the trial court framed the charge and proceeded against the accused persons in spite of the information by filing an Advocate's certificate dated 1 .5.2007 that the petitioner had preferred a Criminal Revision against the order impugned dated 10.4.2007 stating therein for grant of adjournment for a fortnight enabling the petitioner to bring some appropriate order/orders from the High Court with its bearing in the order-sheet dated 1.5.2007 in G.R. No. 2465 of 2003. The petition was allowed and next date was fixed on 16.5.2007 for framing of charge and the court without waiting for the result of the Criminal Revision pending before this Court framed the charge against the petitioner and others in high haste without assigning reason. 6. On merit, the counsel pointed out that the learned court below failed to appreciate the statement of the principal accused Santosh Kumar who confessed his guilt but did not implicate the petitioner in any manner. The prosecution case was that the petitioner Rujesh Nandan alongwith Ajay Kumar had been to hotel to make payment of Rs. 3.00 lakhs but in the case diary it was mentioned without corroboration that the petitioner had accompanied Ajay Kumar, as the latter had been there 'to secure admission of Alok Kumar and this fact has been corroborated in paragraphs 16 and 18 of the case diary. Besides that, he had no concern with the criminal activities of the other accused persons. 7. Mr. Rajesh Kumar finally submitted that the trial court below without application of judicial mind reiterated his previous order by refusing to discharge the petitioner in total disregard of the observation made by this Court while allowing the Cr. Rev.No. 339 of 2007 on 27.9.2007. 8. The learned A.P.P. exhorted that the learned trial court after- a detailed discussion in respect of the materials on the record as also reappreciation of the merit dismissed the petition of the petitioner filed under section 239 of Code of Criminal Procedure by reiterating his earlier order. The impugned order is self-contained which does not call for interference in any manner. 9. I have carefully examined the impugned order and find that the learned trial court upon being satisfied with the prima facie materials on the record proceeded against the accused persons including the petitioner after framing• of charge against them under section 420/ 120B of the Indian Penal Code. 10. The trial court has held that at the time of framing of charge the petitioner did not plead about any criminal revision being pending before the High Court against the impugned order dated 10.4.2007 and similarly this fact was not highlighted before the High Court that the charge has already been framed on 16.5.2007. There is substance in such observation of the trial court. There is substance in such observation of the trial court. I find that no supplementary affidavit has been filed before this Court by the petitioner disclosing the development that the charge against the petitioner and other has already been framed. Similarly no information was made either orally or by filing any petition before the court below that his Criminal Revision was still pending after securing adjournment at the first instance. It is relevant to mention that no stay was granted against the further proceeding in the instant case before the Trial Magistrate. Adjournment at the first instance was granted for 15 days on the petition of the petitioner dated 1.5.2007 and thereafter, no prayer was made for further extension of time. I find that the learned Trial Magistrate was justified in framing of charge for want of any communication about the pendency of the Cr. Revision before this Court and upon being satisfied with the materials against the petitioner and others by a detailed discussion in the order dated 6.10.2007 dismissed the discharge petition of the petitioner. It is not the case of the petitioner that in spite of the information charge was framed against him by dismissing his discharge petition. I do not find any illegality or irregularity in the impugned order passed by the learned Judicial Magistrate in G.R. No. 2465 of 2003 on 6.10.2007 and accordingly, this Cr. Revision is dismissed with the liberty to the petitioner to reagitate the point, if so advised, at the appropriate occasion. At the same time I direct the learned Magistrate to be careful in future, in so far it relates to according opportunity to both sides before an order is passed under section 239 Code of Criminal Procedure.