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2015 DIGILAW 1458 (JHR)

Basudeb Pal v. State of Jharkhand

2015-11-23

RAVI NATH VERMA

body2015
Order : Challenge in this revision application is to the order dated 15.07.2015 passed by learned Judicial Magistrate, 1st Class, Pakur in G.R. No.547 of 2010 arising out of Maheshpur P.S. Case No.75 of 2010 whereby and whereunder the petition filed by the petitioners for their discharge under Section 239 of the Code of Criminal Procedure (in short ‘the Code’), has been rejected. 2. The Fardbeyan of the informant-Ramesh Pal was recorded by the A.S.I. of Maheshpur Police Station at Rampurhat S.D. Hospital on the allegation that the informant was in-charge of the labourers working under NAREGA scheme and when on 03.09.2010 he visited the site for supervision of the construction work and enquired about the progress from one Meghnath Pal, the said Meghnath Pal infuriated with the query and assaulted the informant with knife due to which the informant sustained injury below his chest, whereafter he raised alarm to save him but other accused persons also assaulted him with Lathi, Danda and fist. 3. After completion of investigation, the police submitted the charge-sheet against the petitioners, whereafter the court concerned took cognizance of the offence. After appearance, the petitioners filed a petition for their discharge under Section 239 of the Code on the ground that the injury report enclosed in the case diary completely demolishes the allegation of the informant and in fact, the said injury report was issued on 03.08.2010, though the alleged occurrence took place on 03.09.2010 and the instant case was instituted on the basis of the old injury report dated 03.08.2010. The court below after considering the evidence available on record and the injury report, rejected the prayer for discharge. Hence, this revision. 4. Learned counsel, Mr. Uday Choudhary, while assailing the order impugned as perverse and bad in law, seriously contended that the court below while rejecting the petition for discharge of the petitioners, has not at all considered the prima facie evidence available on record and merely after discussing the injury report, refused to discharge the petitioners. It was also submitted that it is mandatory for the court to discuss the prima facie evidence and grave suspicion available on record while passing the order on a discharge petition. Hence, the order impugned is fit to be set aside and the petitioners deserve to be discharged. 5. It was also submitted that it is mandatory for the court to discuss the prima facie evidence and grave suspicion available on record while passing the order on a discharge petition. Hence, the order impugned is fit to be set aside and the petitioners deserve to be discharged. 5. Refuting the above submissions, the learned counsel representing the State submitted that the court below while rejecting the prayer for discharge of the petitioners had rightly considered the injury report and the statement of the witnesses recorded during investigation and the court is not required to make a roving enquiry or to appreciate the evidence whether the materials produced are sufficient or not for convicting the accused. 6. True it is that at the time of consideration of application for discharge, the court cannot act as mouth piece of prosecution or act as a post office and may sift evidence in order to find out whether or not the allegation made are groundless so as to pass an order of discharge. At this stage, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate those materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. I have gone through the order impugned and find that the court below while considering the petition for discharge has mainly discussed the injury report dated 03.08.2010 issued by Medical Officer, Primary Health Centre, Maheshpur and held that no medical report issued by doctor of Rampurhat S.D. Hospital is available with the case diary. The court below has nowhere discussed the other evidence available in the case diary and merely stated that the allegation leveled in the fardbeyan as stated by the witnesses during statement under Section 161 of the Code not appears to be groundless. In my opinion, the court below while rejecting the prayer for discharge, has not applied its judicial mind and without discussing the prima-facie material available on record, passed the order impugned. 7. In view of the discussion made above, the order impugned cannot sustain and it is, accordingly, set aside and the matter is remanded to the court concerned with direction to pass an appropriate order afresh in the light of the above discussion as early as possible. 7. In view of the discussion made above, the order impugned cannot sustain and it is, accordingly, set aside and the matter is remanded to the court concerned with direction to pass an appropriate order afresh in the light of the above discussion as early as possible. This revision application is, thus, disposed of.