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2015 DIGILAW 1455 (JHR)

Anup Kumar Jha @ Anup Jha v. State of Jharkhand

2015-11-23

RAVI NATH VERMA

body2015
Order : The petitioner has questioned the legality of the order dated 12.08.2013 passed by learned Chief Judicial Magistrate, Deoghar in connection with T.R. Case No.330 of 2013 whereby and whereunder the petition filed by the petitioner for his discharge under Section 239 of the Code of Criminal Procedure (in short ‘the Code’), has been rejected. 2. At the instance of informant Praveen Kumar Patel, a resident of Florida, America, Deoghar Town P.S. Case No.183 of 2011 was instituted under Sections 452/380 of the Indian Penal Code with the allegation that he used to come and stay in his two storied residential house in Brij Bihari Lane, Deoghar from America almost at a gap of 2-3 years. In his absence he used to lock his house of Deoghar and one priest of Deoghar, Panda Sudhir Narone has been entrusted to look after the maintenance of his house. The mother of the informant Madhu Ben Patel lives with the informant in America and very rarely she comes to Deoghar. Almost two months back, the informant got a telephonic call from his priest that he has seen light inside the house of the informant and somebody has placed a name plate inscribed as Shanti Panda on the main gate of the house. The said priest Narone on several occasions found this petitioner going inside the house and possibly the petitioner has broken the lock of the house of the informant. After receiving the said information, he came to Deoghar and found a lock hanging on the door and also found the name plate of one Shanti Panda on the main gate of the house. On 29.06.2011, at about 12.00 noon, he saw a person standing at the door of his house and on enquiry he disclosed his name as Anup Kumar Jha, the petitioner. The informant entered into the house and found that his valuable articles were missing. The informant claimed that the said person with criminal intention entered in his house and has committed theft of the valuable articles. 3. After completion of investigation, the police submitted the charge sheet against the petitioner. The learned Chief Judicial Magistrate, Deoghar on perusal of charge-sheet and police papers took cognizance of the offence under Sections 452 and 380 of the Indian Penal Code. 3. After completion of investigation, the police submitted the charge sheet against the petitioner. The learned Chief Judicial Magistrate, Deoghar on perusal of charge-sheet and police papers took cognizance of the offence under Sections 452 and 380 of the Indian Penal Code. Thereafter, the petitioner filed a petition for his discharge as indicated above but the same was rejected by order impugned holding that there are sufficient materials available on record for framing charge against the petitioner. 4. Learned counsel, Mr. Prashant Pallav, while assailing the order impugned as perverse and bad in law, contended that the court below failed to consider that this petitioner had been inducted as tenant by the mother of the informant and this criminal prosecution has been lodged to defeat the statutory right of this petitioner under the provisions of the Building Act. Learned counsel further relying upon an agreement dated 10.12.2007 enclosed with this revision application as Annexure-4 submitted that the court below without considering the said deed of agreement, in a mechanical manner, rejected the discharge petition and has not assigned any reason for rejecting the same though, the said deed of agreement is an unimpeachable document. It was also submitted that after filing of the instant F.I.R., this petitioner has filed a title suit bearing no.191 of 2011 in the court of Subordinate Judge-I, Deoghar with a prayer to direct the informant to hand over the possession of the house till the time the petitioner is evicted in accordance with the procedure established by law. Lastly, it was submitted that the court below without appreciating and recording the prima facie material available on record, merely relying upon the statement of the informant, passed the order impugned and rejected the prayer for discharge. Hence, the order impugned is fit to be side aside and the petitioner deserves to be discharged. 5. Contrary to the aforesaid submissions, the learned counsel representing the State submitted that the court below while rejecting the prayer for discharge of the petitioner, had rightly considered the evidence available on record and found sufficient prima facie material to frame charge against this petitioner. 6. I have gone through the order impugned and find that the court below while considering the petition filed for discharge of the petitioner, has merely relied upon the statement of the informant and has nowhere discussed the other evidences available on record. 6. I have gone through the order impugned and find that the court below while considering the petition filed for discharge of the petitioner, has merely relied upon the statement of the informant and has nowhere discussed the other evidences available on record. One of the basic requirement before a court while dealing with the petition filed for discharge under Section 239 of the Code, is to give a reasoned order showing grave suspicion or strong prima facie case on consideration of the evidence and materials available on record. The court has also to consider the case diary and other police papers submitted by the Investigating Officer under Section 173 of the Code. But from the order impugned, it appears that the court below has nowhere discussed the prima facie evidence or grave suspicion available on record. Mere saying that there is evidence to frame charge against the petitioner, is not enough. It is true that meticulous examination of evidence or roving enquiry is not required at this stage. 7. In view of the aforesaid discussion, in my opinion, the order impugned cannot sustain and it is, accordingly, set aside. The matter is remanded to the court below with direction to pass appropriate order afresh as early as possible after hearing both the parties and considering the materials available on record. This revision application is, thus, allowed.