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2016 DIGILAW 39 (JHR)

Nizam Ansari v. State of Jharkhand

2016-01-05

RAVI NATH VERMA

body2016
ORDER : 1. Invoking the revisional jurisdiction of this Court under Sections 397 and 401 of the Code of Criminal Procedure (in short ‘the Code’) the petitioner has questioned the legality of the order dated 31.01.2015 passed by the learned Judicial Magistrate, Bermo at Tenughat in Bokaro Thermal P.S. Case No. 28 of 2013 whereby and whereunder the petition filed by the petitioner, for his discharge under Section 239 of 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 on the basis of the self-statement of S.I. of Bokaro Thermal Police Station, the aforesaid case was lodged under Sections 414, 420, 467, 468, 471, 120(B) and 34 of the Indian Penal Code on the allegation that an Scorpio vehicle bearing no. HR-30J-7168 of Hamid Khan was seized by the police. The said owner was doing the business of sale and purchase of the old vehicles and during investigation, one Salim Ansari and his driver disclosed that the said vehicle is a theft one and there is no valid paper. Thereafter on the basis of confessional statement of other co-accused, Hamid Ansari and Salim Ansari, the name of this petitioner came in the light as a dealer, who along with Anul Khan, the brother-in-law of Hamid Khan, on the instruction of Hamid Khan, sold the vehicle in question. It was also disclosed that this Scorpio vehicle was used in disposing of the dead body of the deceased Matlub Ansari and Md. Hadish after their murder. 3. It appears from the record that name of this petitioner came in the confessional statement of co-accused persons but the investigation of this petitioner was kept pending and the first charge sheet was submitted against co-accused Nazim Ansari and after completion of the investigation, supplementary charge sheet was submitted against this petitioner also showing sufficient material to proceed against him. 4. Learned counsel appearing for the petitioner assailing the order impugned as perverse and bad in law seriously contended that the court below without applying his judicial mind passed the order impugned mechanically and in fact there is absolutely nothing on the record to show the complicity of this petitioner in the alleged offence. 4. Learned counsel appearing for the petitioner assailing the order impugned as perverse and bad in law seriously contended that the court below without applying his judicial mind passed the order impugned mechanically and in fact there is absolutely nothing on the record to show the complicity of this petitioner in the alleged offence. It was also submitted that besides the confessional statement of the co-accused persons, there is no other evidence on record and the confessional statement before the police has no evidentiary value and this petitioner was never put on T.I. Parade to find out the truth. 5. Contrary to the aforesaid submissions, the learned counsel representing the State relying upon paragraph-13 of the first supplementary case diary submitted that the court below finding sufficiency of material against this petitioner to frame charge rightly rejected the prayer for his discharge. 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 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. There is basically no difference in a discharge petition filed either under Section 227 or 239 of the Code. 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 Court finds 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 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. The 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. 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. 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, a roving enquiry into the pros and cons of the matter and to weigh the evidence as if the Court is conducting a trial, is not permissible. 8. In another 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 that this is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution, 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, without allowing the prosecution to adduce evidence to substantiate the same. 9. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution, 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, without allowing the prosecution to adduce evidence to substantiate the same. 9. I have gone through the entire case diary and the charge sheet and the supplementary charge sheet submitted by the police after investigation and on perusal of paragraph 13 of the supplementary case diary, it appears that there is sufficient material and strong prima facie case available on record against this petitioner to proceed and to frame charge against him. 10. In view of the discussions made above, I do not find any plausible ground to interfere in the order impugned. Hence, this criminal revision, being devoid of any merit is, hereby, dismissed.