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2012 DIGILAW 340 (PAT)

Binod Kumar @ Binod Kumar Gupta v. State of Bihar

2012-02-27

RAKESH KUMAR

body2012
ORDER Heard Sri Ranjan Kumar Dubey, learned counsel for the petitioner, Mr. Ehtesham Ali Khan, learned Additional Public Prosecutor, who appears on behalf of opposite party no. 1 / state of Bihar and Sri Madhurendra Kumar, learned counsel, who has appeared on behalf of opposite party no. 2/complainant. 2. The sole petitioner while invoking inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order which was passed on 12.10.2007 by learned 1st Additional Sessions Judge, East Champaran, in Cr. Revision No. 125 of 2007. By the said order the learned Sessions Judge has rejected the Criminal Revision preferred by the petitioner against the order dated 13.02.2007 passed by Sri P.K. Singh, Judicial Magistrate 1st Class, Motihari in Trial No. 1563 of 2007 / 1360 of 2008. By the order dated 13.02.2007 the learned Magistrate has rejected the petition filed under Section 245 of the Code of Criminal Procedure for discharge of the petitioner. 3. Learned counsel for the petitioner submits that it was purely a case of land dispute and land over which occurrence was alleged to have been taken place was in clear cut title and possession of the petitioner and as such there was no question for application of Section 379 of the Indian Penal Code. He submits that the learned Magistrate while rejecting the petition for discharge has committed serious error. The learned Magistrate was required to examine documents filed by the petitioner at the stage of discharge but the learned Magistrate has not entertained his prayer and committed serious error in rejecting the petition. Similarly, the revisional court has also committed the same error and it was observed by the revisional court that the documents produced on behalf of the petitioner can be looked into at defence stage whereas the documents were sufficient to prove that no prima facie case was made out against the petitioner. 4. Sri Dubey, learned counsel for the petitioner, in support of his argument has heavily relied on a judgment of this court reported in 1999(3) PLJR 875 [Bhagwan Das Vs. Smt. Rita Kumari]. He submits that this court has held that even at the stage of charge documents produced by the accused persons can be looked into. 4. Sri Dubey, learned counsel for the petitioner, in support of his argument has heavily relied on a judgment of this court reported in 1999(3) PLJR 875 [Bhagwan Das Vs. Smt. Rita Kumari]. He submits that this court has held that even at the stage of charge documents produced by the accused persons can be looked into. On aforesaid grounds it has been prayed to set aside both the orders i.e. the order of revisional court as well as the order passed by the learned Magistrate. 5. On the contrary, Sri Madhurendra Kumar, learned counsel for the opposite party no. 2 submits that time without number it has been held that at the stage of charge either under Sections 227, 239 or 245 of the Code of Criminal Procedure only requirement is to see as to whether prima facie case is made out or not. He submits that during enquiry sufficient materials were brought on record regarding commission of offences under Sections 147, 323, 379 of the Indian Penal Code. Learned counsel for the opposite party no. 2 further submits that in this case itself he has filed counter affidavit and along with the counter affidavit he has brought on record copy of registered sale deed to show that the land over which alleged occurrence had taken place belongs to the complainant. In support of his contention he has placed reliance on a case reported in (1986) 2 SCC 716 (R.S. NAYAK Vs. A.R. ANTULAY AND ANOTHER). In paragraph no. 43 and 46 of the said judgment it has been categorically held regarding looking into prima facie case at the stage of charge. He further submits that documents of accused can be looked into at the stage of defence which has been approved in A.R. Antulay Case (Supra). Learned Additional Public Prosecutor also supports the stand taken by learned counsel for the opposite party no. 2. 6. Besides hearing learned counsel for the parties I have also perused the materials available on record. 7. It is not in dispute that at the stage of charge only requirement is to see prima facie case. The word ‘prima facie’ has elaborately been discussed by the Apex Court in a case reported in 1996(3) CRI. L.J. 2448 (State of Maharashtra Vs. Som Nath Thapa). At this stage it would be appropriate to quote paragraph no. 7. It is not in dispute that at the stage of charge only requirement is to see prima facie case. The word ‘prima facie’ has elaborately been discussed by the Apex Court in a case reported in 1996(3) CRI. L.J. 2448 (State of Maharashtra Vs. Som Nath Thapa). At this stage it would be appropriate to quote paragraph no. 30, 31 and 32 of the Som Nath Thapa Case (supra) which is as follows:- 30. In Antulay’s case, ( AIR 1986 SC 2045 ), Bhagwati, C.J., opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of “prima facie” case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence”. 31. Let us note the meaning of the word “presume”. In Black’s Law Dictionary, it has been defined to mean “to believe or accept upon probable evidence”. (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law “presume” means “to take as proved until evidence to the contrary is forthcoming”, Stroud’s Legal Dictionary has quoted in this context a certain judgment according to which “A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged.” (Emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition. 32. The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition. 32. The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” 8. On perusal of the aforesaid observation(s) of the Apex Court it is evident that a prima facie case can be made out even on probability of commission of offence. So far examination of the documents produced by the accused persons are concerned, the court is of the opinion that those documents can be looked into at the stage of defence also. 9. The second ground for non-interference with the either of the orders is that against the order of rejection of discharge petition the petitioner had preferred a criminal revision which was rejected. Under Section 397(3) of Code of Criminal Procedure there is bar for second revision. It appears that in the garb of a petition filed under Section 482 of the Code of Criminal Procedure the petitioner has virtually filed a second revision petition. The court is of the opinion that after rejection of criminal revision petition a petition under Section 482 of the Code of Criminal Procedure by the same person can be termed as second revision which is barred in the eye of law. 10. In view of the facts and circumstances particularly the fact that the learned Magistrate while rejecting the discharge petition has discussed the accusation, I do not find any defect in the same. The petition stands dismissed. ?