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2016 DIGILAW 25 (JHR)

Binod Prasad Chaurasia v. State of Jharkhand

2016-01-05

RAVI NATH VERMA

body2016
ORDER : Challenge in this revision application is to the order dated 02.05.2014 passed by learned Judicial Magistrate, Ranchi in C-2461 of 2008 whereby and whereunder, the petition filed by the petitioners for their discharge under Section 245 of the Code of Criminal Procedure (in short “the Code?), has been rejected. 2. The facts of the case, which is relevant for the proper adjudication of the issue involved in this revision application, in short, is that at the instance of the informant Niranjan Lal Todi, Ranchi Kotwali P.S. Case no.103 of 2006 was instituted under Sections 420, 461 and 379/34 of I.P.C. against the petitioners with the allegation that the informant has been running a shop namely “Shyam Enterprises” on monthly tenanted basis of which the petitioners were owners. Earlier, a lease agreement was executed between this informant and the petitioners which continued till October, 2005, thereafter, this informant was paying rent month to month but as the wife of the owner Binod Prasad Chaurasia was admitted in Seva Sadan Hospital, Ranchi, he requested the informant to pay him Rs.2,00,000/-, which is urgently required and in lieu of that, he will execute a lease agreement of the tenanted shop in his favour for eleven years. On his request, the informant paid Rs.30,000/- to Binod Prasad Chaurasia in presence of Rajan Chaurasia and Bhim Chaurasia and the petitioners gave him a written receipt of Rs.30,000/-. Again after few days, he gave Rs.1,20,000/- but this time, the petitioners did not give him any receipt and whenever he asked them to give receipt, they always assured to handover the same but as the wife of Binod Kumar Chaurasia was admitted in hospital, he never put any pressure on the petitioners to issue receipt and subsequently on 10.02.2006 at about 8.00 a.m. when the informant went to open his shop, he found the lock of the godown and shop broken and the materials worth Rs.2,00,000/- missing. On enquiry from the neighbours, he came to learn that the shop owner Binod Kumar Chaurasia, Rajan Chaurasia and Bhim Chaurasia have removed the articles from his godown and shop and when this informant enquired from the petitioners, they badly misbehaved with him and threatened him of dire consequence. 3. On enquiry from the neighbours, he came to learn that the shop owner Binod Kumar Chaurasia, Rajan Chaurasia and Bhim Chaurasia have removed the articles from his godown and shop and when this informant enquired from the petitioners, they badly misbehaved with him and threatened him of dire consequence. 3. It appears from the record that the police after investigation submitted the final form against the petitioners whereafter a complaint-cum-protest petition was filed and the court after examining the complainant as well as the witnesses took cognizance of the offence under Sections 420, 461 and 379/34 of I.P.C. and directed to issue summons against the petitioners to face the trial holding that on examination of the depositions of the complainant as well as witnesses, there appears to be sufficient materials on the record for framing charge. Accordingly, the discharge petition was rejected as indicated above. Hence, this revision. 4. Learned counsel appearing for the petitioners assailing the order impugned as perverse and bad in law seriously contended that there is absolutely no direct or indirect evidence to show the involvement of the petitioners in the alleged offence and almost on the similar facts, F.I.R. was lodged but after investigation, the police submitted final form against the petitioners. It was also submitted that none of the ingredients responsible to constitute the offence either under Section 420 or 461 or 379 of I.P.C. are available on record to frame charge against the petitioners, which would appear from the evidence of the witnesses examined under Section 244 of the Code and further submitted that the Hon?ble Supreme Court in several judgments have settled that if two views are possible and the Judge is satisfied that the evidence produced gives rise to suspicion only, as distinguished from grave suspicion, he would be fully within his right to discharge the accused. 5. Contrary to the aforesaid submissions, the learned counsel representing the State seriously contended that the court below while rejecting the prayer for discharge relied upon the testimony of the three witnesses and the evidence of the complainant and at this stage, the meticulous examination or roving enquiry into the pros and cons of the matter is not permissible. 6. Before adverting to the rival submissions, it would be proper to examine the scope and ambit of the power of the court below under Section 239 and 245 of the Code. 6. Before adverting to the rival submissions, it would be proper to examine the scope and ambit of the power of the court below under Section 239 and 245 of the Code. The Criminal Procedure Code contemplates the discharge of an accused if the case is triable by a Court of Sessions under Section 227 of the Code but if the case is instituted upon a police report and is triable by a Magistrate then it is covered by Section 239 of the Code. The cases instituted otherwise than on a police report i.e. Complaint are dealt with in Section 245 of the Code. However in a Complaint Case as contemplated under Section 244 of the Code, the evidence collected during examination of witnesses before charge shall only be considered at the time of framing of charge or for adjudication of petition filed for discharge by an accused. There is basically no difference in a discharge petition filed either under Section 227 or 239 of the Code but the consideration under Section 245 of the Code is different though the principle would be the same. The above two provisions of the Code provide that upon consideration of the evidence and the documents submitted with the police report as contemplated under Section 173 of the Code and after hearing the prosecution and the accused, if the Courts find a prima facie case and grave suspicion to proceed against the accused, the charge has to be framed but if there is no prima facie case, or suspicion, the Court shall discharge the accused. The settled law at this point is succinctly analyzed by the Hon?ble Supreme Court in Sajjan Kumar Vs. CBI [ (2010) 9 SCC 368 ] wherein the Hon?ble Court has observed in para 19 as under: “19. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” 7. In a case Rajiv Thapar and others Vs. Madan Lal Kapoor; (2013) 3 SCC 330 , the Hon?ble Supreme Court while dealing with the issue of discharge in a complaint case, lodged at the instance of father of a deceased girl, held in paragraph- 28 as follows:- “28. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations brining out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.“ 8. True, it is that at the time of consideration of the application for discharge, the court cannot act as mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass the order of discharge. True, it is that at the time of consideration of the application for discharge, the court cannot act as mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass the order of discharge. It is trite that at the stage of consideration of an application for discharge, specially when the petition has been filed for discharge under Section 245 of the Code, the court has to proceed on the basis of deposition of the witnesses examined under Section 244 of the Code. I have also gone through the depositions of the complainant as well as other witnesses, which have been brought on record at the instance of the petitioners in revisional application and from the depositions, it appears that the witnesses have fully supported the complainant?s case or removal of articles kept in the tenanted premises of the complainant by the petitioners. At this stage, roving inquiry into the pros and cons of the matter and weighing the evidence as if the court was conducting a trial, is not possible. It is true that the court below in the order impugned has though not discussed the ingredients responsible to constitute the offence but in view of the ratio decided in the case Lalu Prasad Vs. State of Bihar; (2007) 1 SCC 49 , if the reasons are recorded or the ingredients responsible to constitute the offence are discussed in detail considering the evidence of the witnesses, there is likelihood of prejudicing the case of the accused put on trial. The Hon?ble Supreme Court has further held in the above case Lalu Prasad (supra) that the Judge is required to record reasons only if he decides to discharge the accused but if he has to frame charge, he may do so without recording his reasons for showing why he framed the charge. Hence, I do not subscribe to the submissions advanced on behalf of the petitioners that no offence is attracted against the petitioners in which the court has taken cognizance of the offence. 9. In view of the circumstances discussed above, there is no merit in this criminal revision. It is, accordingly, dismissed.