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2010 DIGILAW 1194 (CAL)

M. P. Arun v. State

2010-09-15

KALIDAS MUKHERJEE

body2010
JUDGMENT Kalidas Mukherjee, J. 1. THIS is an application under Section 397 read with Section 401 of the Code of Criminal Procedure assailing the impugned order dated 16.7.2010 passed by the learned Judicial Magistrate, Ist Class II, Port Blair in G.R.Case No.2090 of 2007, whereby after re-hearing the petitioner and the State, the learned Court once again rejected the prayer of the accused for discharge under Section 239 Cr.P.C. 2. The case of the prosecution, in short, is that the Assistant Secretary (Passport) lodged complaint with the police alleging that the petitioner herein was asked to show cause as to why the passport facility would not be refused to him under the provisions of Section 6.2(f) of Passport Act, 1967. It is the case of the prosecution that the petitioner herein at the time of filing the application for passport on 22.2.2007, suppressed material facts, namely, the criminal cases were pending against him and that as regards his occupation, he described himself as a businessman, but, as a matter of fact, on the date of application, he was serving as Police Radio Operator. The accused person filed an application praying for discharge and the learned Magistrate rejected his prayer. Thereafter, the accused petitioner moved the revisional application in this Honble Court bearing No. C.R.R. 007 of 2010, which was allowed by the Honble Court setting aside the impugned order and directing the learned Magistrate to hear the application filed by the accused afresh. The learned Magistrate thereafter heard both sides afresh and passed the impugned order dated 16.7.2010. The learned Magistrate observed that at the time of framing of the charge, the court would see whether there was prima-facie material to go into the trial or not and it was not the stage to weigh the evidence. The learned Magistrate observed that the factual aspects could be considered only after recording the evidence and rejected the petition filed by the accused praying for discharge. Being aggrieved by the said order passed by the learned Magistrate, the accused petitioner has filed the instant application 3. The learned Magistrate observed that the factual aspects could be considered only after recording the evidence and rejected the petition filed by the accused praying for discharge. Being aggrieved by the said order passed by the learned Magistrate, the accused petitioner has filed the instant application 3. The learned counsel appearing for the petitioner submits that on the date of filing of the application for passport, there was no pendency of criminal cases against the petitioner as all the cases ended in acquittal prior to the date of filing of the application for passport and it has been categorically stated in the revisional application. It is contended that the prosecution could not initiate any criminal case against the petitioner. It is submitted that the passport authority under the provisions of the Act could only reject the prayer for issuing a passport. It is submitted that the show cause notice issued by the passport authority has not been served upon the petitioner at all. 4. MR. Mandal appearing on behalf of the respondent submits that the scope of interference at the stage of framing of charge is very limited. MR. Mandal submits that three cases started against the petitioner herein were already disposed of and on the date of application for passport, no case was pending, but, after submission of the application for passport, another case bearing No. 351 dated 8.4.2007 was started. MR. Mandal submits that in the application for passport dated 22.2.2007, the petitioner described himself as a businessman, although, he was a Police Radio Operator on such date. MR. Mandal thus contends that it amounts to suppression of material facts attracting thereby the provision of Section 12(1)(b) of the Passport Act. MR. Mandal in support of his contention has referred to and cited the decision reported in AIR 2000 SC 522 (Kanti Bhadra Shah and another- vs. State of West Bengal). MR. Mandal contends that in case of primafacie opinion formed by the learned Magistrate for framing of charges, no reason is required to be assigned. MR. Mandal contends that the impugned order does not call for any interference. MR. Mandal contends that in case of primafacie opinion formed by the learned Magistrate for framing of charges, no reason is required to be assigned. MR. Mandal contends that the impugned order does not call for any interference. It appears that on the earlier occasion when the learned Magistrate decided to frame the charge, the accused person being the petitioner herein filed a revisional application bearing CRR No. 007 of 2010 which was disposed of setting aside the impugned order with the direction upon the learned Judicial Magistrate to hear the application afresh without being swayed by the observation made in the judgment. Thereafter, the learned Magistrate passed the order impugned holding that it was not the proper stage to weigh the evidence and there was prima-facie material to go into the trial. 5. The contention of the petitioner relating to the disposal of the criminal cases prior to the date of application of passport are all matters of record. That apart, there is another allegation that the petitioner in his application dated 22.2.2007 stated that he was a businessman, but, as a matter of fact, he was a Radio Operator in Police Radio Organization on such date, as it appears from the letter dated 24.4.2007 of the Dy.SP (CID), AandN Islands. It is the settled principle of law that at the stage of framing of charge, the court will not enter into the question of probative value of the materials against the accused. The learned Magistrate is to see whether there are materials to show prima-facie case against the accused person. The allegation of the prosecution that on the date of application for passport, the petitioner was a Police Radio Operator and not a businessman, prima-facie, attracts the penal provision as mentioned in Section 12(1)(b) of the Passport Act. 6. HAVING heard the learned counsel for the parties and after going through the materials on record, I find that no illegality or material irregularity was committed by the learned Magistrate in passing the impugned order. The impugned order passed by the learned Magistrate does not call for any interference in this revisional application. The revisional application fails and the same stands dismissed. Let a copy of this judgment be sent to the leaned Court below immediately. 7. URGENT photostat certified copy, if applied for, be made over to the parties as early as possible.