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Jharkhand High Court · body

2009 DIGILAW 618 (JHR)

Lal Manoj Nath Sahdeo v. State of Jharkhand

2009-04-27

D.K.SINHA

body2009
JUDGMENT Present criminal revision is directed against the order impugned dated 12.2.2008, passed by the learned Chief Judicial Magistrate, Lohardaga by which petition filed on behalf of the petitioner for his discharge under Section 239 of the Code of Criminal Procedure for the alleged offence under Sections 384/120B/34 of the Indian Penal Code as also under Section 17(2) of the Criminal Law (Amendment) Act, 1908 was rejected in Senha P.S. Case No.23 of 2007, corresponding to G.R. Case No.120 of 2007. 2. Prosecution story, in short, was that while the informant-police officer was going with the raiding party to arrest certain extremists and was also interrogating several villagers of the different villages on 10.3.2007, he found a motorcycle coming without registration number on the registration plate. The rider and the pillion having seen the police party started fleeing away, leaving the motorcycle there. However, on suspicion they were apprehended, who disclosed their names Umesh Hazam and Keshav Yadav. It was disclosed by Keshav Yadav that he was going to call on his cousin Nakul Yadav @ Arjun Yadav @ Jawahar Yadav, Zonal Commander of M.C.C. staying at village Uperturiyadih as he had assured him to help with money in the marriage of his daughter. Further disclosure was made that one Surendra Yadav was also coming along with other four persons in different motorcycles, who were also going to meet Nakul Yadav. Meanwhile, three motorcycles were seen coming and police intercepted. Surendra Yadav was also one of them as pillion rider on a motorcycle, which was driven by one Sanjay Prasad. It was alleged that in the second motorcycle, petitioner Lal Manoj Nath Sahdeo was sitting with Vijay Yadav and the rider of the third motorcycle was Uday Shankar Kuwar without pillion. It was alleged that on search, a diary containing telephone No.9430392218 of Nakul Yadav was recovered from the pocket of Vijay Yadav. It was further alleged that from the pocket of the petitioner, one cell phone of Samsung Company vide No.9430365418 was recovered. Besides, other incriminating articles, cash, cell phones were recovered from the other motorcycles. These persons including the petitioner admitted before the police that they were going to call on Nakul Yadav, Zonal Commander of the M.C.C. to give levy. Accused persons including the petitioner were arrested and remanded to judicial custody. Besides, other incriminating articles, cash, cell phones were recovered from the other motorcycles. These persons including the petitioner admitted before the police that they were going to call on Nakul Yadav, Zonal Commander of the M.C.C. to give levy. Accused persons including the petitioner were arrested and remanded to judicial custody. Investigation was initiated and the police submitted chargesheet against all the accused persons under Sections 384/120B/34 of the Indian Penal Code as also under Section 17(2) of the Criminal Law (Amendment) Act, 1908. 3. Mr. Anil Kumar, learned counsel initiated argument on behalf of the petitioner by submitting that from the entire prosecution case, it would be evident that the petitioner was arrested with Vijay Yadav while he was crossing the village Baladih in a Bajaj Pulsar motorcycle No. JH 08A/ 3303 and a diary was recovered from the pocket of the pillion Vijay Yadav in which telephone number of Nakul Yadav was found entered whereas cell phone of Samsung Company was found from the possession of the petitioner. Except the aforesaid fact, there was no material against the petitioner to show his nexus of any kind with the M.C.C. Zonal Commander Nakul Yadav. 4. Learned counsel pointed out that if at all there was admission that some of the riders were going to call on the extremist Nakul Yadav and sum of Rs.50,000/-and 47,500/-were recovered from the possession of some of the accused, recovery was not made from the possession of the petitioner and it was the confessional statement of the co-accused, which was not relevant against the petitioner. 5. Learned counsel submitted that nothing material was recovered from the possession of the petitioner so as to connect his relation with Nakul Yadav and even if a diary was recovered from the co-accused Vijay Yadav with the given cell phone number, police simply speculated that the SIM number was of Nakul Yadav without collecting any evidence to substantiate their suspicion. In the given facts and circumstances, no offence is made out against the petitioner and therefore, it was a fit case for his discharge but his prayer for discharge from the criminal liability was rejected by the impugned order. Investigating agency failed to make out any case under Sections 384/120B/34 of the Indian Penal Code. In the given facts and circumstances, no offence is made out against the petitioner and therefore, it was a fit case for his discharge but his prayer for discharge from the criminal liability was rejected by the impugned order. Investigating agency failed to make out any case under Sections 384/120B/34 of the Indian Penal Code. It was not the case that the petitioner put any person in fear of any injury and further dishonestly induced the said persons to deliver any property to him. There was no material in the case diary to infer that the petitioner was a party to the criminal conspiracy and in prosecution to that any crime was proposed to be given effect to or actually was given effect to. 6. Referring the criminal jurisprudence, learned counsel submitted that commission of offence is preceded in three stages viz. intention, preparation and then attempt to commit offence, but in the present fact, prosecution failed to prove that the petitioner had intention , preparation and had attempted to commit any offence. 7. Learned A.P.P. opposed the contention and submitted that petitioner was found in the company of the other accused persons, who had nexus with the notorious Nakul Yadav, Zonal Commander of M.C.C. to whom the police had intercepted while they were going to give money as levy and this allegation was substantiated in the confessional statement of the co-accused before the police leading to discovery of huge amount, cell phone and diary. 8. Counsel for the petitioner vehemently argued that nothing much less incriminating article except cell phone was recovered from his possession, but the counsel has lost sight of the fact that the petitioner was found in the company of other accused persons who were going to give levy amount to Nakul Yadav and was riding motorcycle No. JH 08A/ 3303 with the pillion Vijay Yadav and a diary was recovered from the possession of Vijay Yadav containing mobile number of Nakul Yadav. 9. Such revelation by the police in the case diary cannot exonerate the petitioner from his criminal liability. Learned A.P.P., however, fairly conceded that there was no allegation of extortion of money or criminal conspiracy against the petitioner. 10. 9. Such revelation by the police in the case diary cannot exonerate the petitioner from his criminal liability. Learned A.P.P., however, fairly conceded that there was no allegation of extortion of money or criminal conspiracy against the petitioner. 10. Having regard to the facts and circumstances of the case, considering the arguments advanced on behalf of the parties, I find that though cognizance of the offence was taken under Sections 384/120B/34 of the Indian Penal Code but required ingredients for constituting the offence under Sections 384/120B of the Indian Penal Code are not fulfilled by the prosecution. It was the clear-cut case of the prosecution that the accused persons were going to give levy to the M.C.C. Zonal Commander and on search of the accused persons, huge amount totaling to the tune of Rs.97,000/-and some fruits were recovered which prima facie constitutes an offence under Section 17(2) of the Criminal Law (Amendment) Act against the petitioner. 11. I am of the firm view that in the given situation, no offence under Sections 384/120B/34 of the Indian Penal Code is made out against the petitioner but, of course, I find prima facie case under Section 17(2) of the Criminal Law (Amendment) Act, 1908 in which the petitioner is required to be proceeded without being prejudiced to the merit of the case. 12. With such modification in the cognizance order, this petition is dismissed.