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2015 DIGILAW 626 (JHR)

Vinay Kumar Agarwal v. State of Jharkhand

2015-05-13

RAVI NATH VERMA

body2015
JUDGMENT Challenge in this revision application is to the order dated 21.01.2013 passed by the learned Judicial Magistrate, 1st Class, Gumla in Spt.G.R. No. 62 of 2000 arising out of Bishunpur P.S. Case No. 05 of 2000, whereby and whereunder the petition filed by the petitioner for his discharge under Section 239 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) has been rejected. 2. At the instance of Assistant Mining Officer, Gumla, a First Information Report was lodged on 30.01.2000 for the offence under Section 379 of the Indian Penal Code read with Section 21 of Mines and Minerals (Development & Regulation) Act, 1957 on the allegation that during inspection, it was found that illegal mining of Bauxite was going on and seeing the vehicle of the informant, the persons engaged in the mining fled away. On enquiry, the informant came to know that the illegal mining was being done at the instance of four accused persons namely Krishna Singh, Benedik Kerketta, Bhikhari Bhagat and Laldeo Asur and the illegally mined Bauxite were sent to Hindalco siding at Tori Railway Station on trucks. It is also alleged that Hindalco Industries Ltd. was directed not to purchase illegally mined Bauxite but the Company did not follow the direction. 3. It appears from the record that after investigation, which continued till 30.11.2002, surprisingly besides the four named accused persons, the charge sheet was also submitted against the present petitioner showing as accused no. 5 and accordingly cognizance of offence was taken whereafter this petitioner preferred an application under Section 482 of the Code challenging the order taking cognizance in this Court bearing Cr.M.P. no. 211 of 2003, which was dismissed by order dated 25.06.2004 and a direction was given to the petitioner to raise all the points before framing of charge and the Magistrate shall consider those points and pass order according to law. It further appears that before framing of charge, a petition for discharge was filed at the instance of this petitioner in the court below but the same was dismissed. Against this dismissal, the petitioner preferred criminal revision bearing no. It further appears that before framing of charge, a petition for discharge was filed at the instance of this petitioner in the court below but the same was dismissed. Against this dismissal, the petitioner preferred criminal revision bearing no. 818 of 2010 before this Court on the ground that though the petitioner had taken the specific plea before the court below that he was appointed on 01.10.2000 in the Hindalco Industries Ltd. whereas the date of occurrence was 30.01.2000 much before the appointment of this petitioner in the said Company but the court below while dismissing the discharge petition failed to consider this aspect and no finding was given and dismissed the petition holding that there are sufficient materials against this petitioner on record. The said criminal revision was allowed with a direction to the court concerned to pass fresh order in accordance with law taking into consideration the points raised by the petitioner that he was not employed in the said Company on the date of occurrence. It appears that by the order impugned, the learned Magistrate rejected the petition for discharge. 4. Mr. Ananda Sen, Learned counsel for the petitioner, assailing the finding recorded by the court below in the order impugned submitted that though the court concerned considered the plea raised by the petitioner that he was not employed in the said Company on the alleged date of occurrence but without applying his judicial mind recorded a finding that the document, filed by the defence counsel that he was not present in the said Company during the time of the occurrence, is just a certificate in photo state form in the letter pad of Hindalco Industries Ltd. without any stamp of the issuing authority and without reference no. and the authenticity of those documents will be considered during trial stage. Learned counsel further submitted that there is absolutely nothing in the case diary to connect the complicity of this petitioner in the alleged offence and from the case diary also it appears that almost after conclusion of investigation, the name of this petitioner was included in the charge sheet. Learned counsel further submitted that other four accused persons have already been acquitted of the charge after a full trial by judgment dated 26.03.2012 and as such, the continuation of this proceeding would amount to an abuse of process of law. 5. Learned counsel further submitted that other four accused persons have already been acquitted of the charge after a full trial by judgment dated 26.03.2012 and as such, the continuation of this proceeding would amount to an abuse of process of law. 5. Contrary to the aforesaid submission, the learned counsel representing the State relying upon the judgments of the Hon’ble Supreme Court in State of Mahararashtra & Ors. Vs. Somnath Thapa and others [1996(2) East Cr.C. 1 (S.C.)] and also in State of M.P. Vs. Mohan Lal Soni [2000(3) East Cr.C. 1118 (S.C.)] submitted that Hon’ble Supreme Court has clearly held 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 and the court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. 6. On perusal of the earlier order passed by this Court in Criminal Revision no. 818 of 2010, it appears that the court below was directed to pass fresh order in accordance with law taking into consideration the points raised by the petitioner that he was not employed in the Company on the date of occurrence. This question was raised in the court below and the court below on consideration of the documents filed by the defence counsel held as follows:- “The document filed by the Ld. defence counsel in support of petitioner that he was not posted in the said company during the time of the occurrence it is just a certificate in Photo stat form in the letter pad of Hindalco Industries Ltd. without any stamp of the issuing authority and without reference number, which creates a lot doubt on its exactness and on its authenticity. Moreover, it is not the proper stage of discussing the authenticity of the said documents filed in support of his non-appearance during the time of occurrence. It is a matter of trial and during trial stage the authenticity of the said document will be checked. Moreover, it is not the proper stage of discussing the authenticity of the said documents filed in support of his non-appearance during the time of occurrence. It is a matter of trial and during trial stage the authenticity of the said document will be checked. I also find that the prosecution also opposed the said document filed in support of the petition that it is highly doubtful as it is without any reference No. and stamp of issuing authority and it is not the right time for discussing the authenticity of said document, It is a matter of trial.” 7. 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 finding after consideration of the evidence and materials available on record whether the said court is prima facie satisfied with the sufficiency of ground for proceeding against the accused. Though from the impugned order, it appears that the court below in simple line has only said that there is sufficient evidence to frame charges against the petitioner but the court has not whispered which are those materials available on record. It is true that it is not required to marshal the materials and evidence on record with a view to decide the complicity thereof but the mere saying that there is sufficient evidence to frame charge against the petitioner is not enough. I find that the court below has not even examined the case diary and materials on record as there is no whisper about those materials in the order impugned. 8. In the result, the impugned order cannot sustain and, accordingly, it is set aside with direction to the court concerned to pass an appropriate order afresh as early as possible after considering the materials available on record. 9. This revision application is thus allowed.