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2009 DIGILAW 967 (JHR)

Lala Mishra v. State of Jharkhand

2009-07-14

D.K.SINHA

body2009
JUDGMENT Present criminal revision is directed against the order impugned dated 31.7.2008, passed by Sub Divisional Judicial Magistrate, Bokaro in G.R. No.417 of 2007 by which petition of the petitioners for their discharge under Section 239 of the Code of Criminal Procedure was rejected. 2. Prosecution story, in short, was that on 31.3.2003 at about 6.30 p.m. while informant was sitting along with the other witnesses at Telgaria turning, he was apprehended and surrounded by the petitioners and one Jitendra Nath Mishra. It was specifically alleged against the principal accused Jitendra Nath Mishra that he with the intention to commit murder, attempted to inflict blow with dagger to the informant, but the latter warded off with his right hand and in that action, he sustained cut injuries in his right hand. Jitendra Nath Mishra then repeated his blow to which informant this time applied his left hand to prevent the attack but he sustained cut injuries in his left finger. It was alleged against the petitioners, that they were holding the informant, while the principal accused was attempting on the life of the informant. On the alarm, the witnesses arrived at the scene. Yet, it was specifically alleged that the co-accused Sapan Mishra (Petitioner No.3) escaped after removing the wrist watch from the possession of the informant and that the occurrence was given effect to in furtherance of common intention by the accused persons with the intention to commit his murder. 3. The learned counsel submitted that the occurrence did not take place in the manner presented by the informant Pankaj Kumar Roy. Contrary to the allegation, on the date and time of the alleged occurrence, informant along with another Bikram Roy had come to the betel shop of the accused Jitendra Nath Mishra and in course of altercation, informant broke the looking glass, which was hanging in the betel shop of the accused Jitendra Nath Mishra and on protest, they assaulted Jitendra Nath Mishra. As a matter of fact the petitioners were not there at the alleged place of occurrence, therefore, their participation in the alleged occurrence did not arise. This fact was considered by the investigating officer in course of investigation and supported by the Sub Divisional Police Officer, Bokaro on whose supervision note charge sheet was submitted only against Jitendra Nath Mishra and that the petitioners herein were not sent up for trial. 4. This fact was considered by the investigating officer in course of investigation and supported by the Sub Divisional Police Officer, Bokaro on whose supervision note charge sheet was submitted only against Jitendra Nath Mishra and that the petitioners herein were not sent up for trial. 4. Learned counsel pointed out that since complicity of the petitioners could not be found in course of investigation, the investigating officer submitted charge sheet only against Jitendra Nath Mishra for the alleged offence under Sections 341/323/324/504 of the Indian Penal Code. But the learned C.J.M., Bokaro took cognizance of the offence under aforesaid Sections of the Indian Penal Code against all the accused persons without appreciating that there was no material against the petitioners in the case diary alleging their complicity. 5. Learned A.P.P. opposed such contention and submitted that the petitioners had taken plea of alibi at the time of pressing their petition under Section 239 of the Code of Criminal Procedure, and the learned Sub Divisional Judicial Magistrate, Bokaro was justified while observing that the plea of alibi may be considered in course of trial, when the petitioners would be called upon to adduce defence. 6. Having regard to the facts and circumstances of the case, I find that the plea of alibi, that was taken by the petitioners while pressing their petition under Section 239 of the Code of Criminal Procedure for discharge, was rightly not considered by the learned Sub Divisional Judicial Magistrate, Bokaro at the relevant time of framing of charge. The plea of alibi is a fact based upon evidence to be adduced in support of the defence of an accused and such plea cannot be considered for discharge at the initial stage under Section 239 of the Code of Criminal Procedure. 7. The learned Sub Divisional Judicial Magistrate, Bokaro was within his competence to issue summons to an accused who were not sent up for trial in the charge sheet filed under Section 173 of the Code of Criminal Procedure for the alleged offence which are triable by a Judicial Magistrate of 1st Class. It was not the case that he had summoned the accused for the alleged offence exclusively triable by the Court of Sessions. In that case jurisdiction was there only with the Sessions Judge under Section 319 of the Code of Criminal Procedure. 8. It was not the case that he had summoned the accused for the alleged offence exclusively triable by the Court of Sessions. In that case jurisdiction was there only with the Sessions Judge under Section 319 of the Code of Criminal Procedure. 8. In the circumstances, I find no merit in the present criminal revision so as to call for interference in the order impugned dated 31.7.2008, passed by Sub Divisional Judicial Magistrate, Bokaro in G.R. No.417 of 2007. 9. Accordingly, this criminal revision is dismissed.