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2016 DIGILAW 717 (JHR)

Vijay Kumar Kandoi v. State of Jharkhand

2016-04-26

RAVI NATH VERMA

body2016
Order : The petitioners have questioned the legality of the order dated 17.09.2015 passed by learned Sub Divisional Judicial Magistrate, Dhanbad in connection with Baghmara P.S. Case No.279 of 2012 (G.R. Case No. 4344 of 2012) whereby and whereunder the petition filed by the petitioners for their discharge under Section 239 of the Code of Criminal Procedure, has been rejected. 2. Bereft of the unnecessary details, the relevant facts of the case which has been instituted on the written report of the complainant Ramesh Kumar Choudhary under Sections 406, 420 and 120B of the Indian Penal Code, in short, is that the accused persons have committed cheating and misappropriation of amount by entering into criminal conspiracy and also grabbed the said truck. It is also the case of the informant that he took loan for purchasing the truck bearing no. CH04JB3778 from HDFC bank in the year 2009 and entrusted the said truck to the petitioners for plying for commercial purposes and it was agreed that the petitioners will pay installments of loan to HDFC bank from profit and will also pay lump sum from the profit amount to the informant but the petitioners stopped making payment of the installments after October, 2012 and also the profit money to the informant and on enquiry, they flatly refused to hand over the said truck to the informant. 3. It appears from the record that police after investigation submitted the charge-sheet against the petitioners and accordingly cognizance was taken under Sections 406, 420 and 120B of the Indian Penal Code. Subsequently, the petitioners at the stage of framing charge, filed a petition for their discharge as indicated above but the court below refused to discharge the petitioners by the order impugned. Hence, this revision. 4. Learned counsel, Mr. Anurag Kashyap assailing the order impugned as perverse and bad in law seriously contended that the court below while refusing to discharge the petitioners has failed to record any reasoning or the prima facie strong suspicion against the petitioners and merely relying upon the allegation in the F.I.R., passed the order impugned. Hence, this revision. 4. Learned counsel, Mr. Anurag Kashyap assailing the order impugned as perverse and bad in law seriously contended that the court below while refusing to discharge the petitioners has failed to record any reasoning or the prima facie strong suspicion against the petitioners and merely relying upon the allegation in the F.I.R., passed the order impugned. It was also submitted that though the court below in the order impugned has held that there are sufficient materials available on record to frame charge but none of the material has been even prima facie considered or discussed by the court below and in view of the mandates given by the Hon'ble Supreme Court in various judgments, the court has to assign reason while refusing to discharge the accused persons and that it is also well settled that the court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused but it is mandatory for the court to assign reason and the prima facie satisfaction of the court. Hence, the order impugned is not sustainable in the eye of law. 5. Learned counsel representing the State submitted that the court below after considering the sufficient materials available record rightly directed to frame charge against the accused persons and no cogent ground has been shown by the petitioners to interfere in the order impugned. 6. One of the basic requirement before a court while dealing with the petition filed for discharge under Section 239 of the Code is to record a finding or reasoning upon consideration of the evidence and materials available on record and also to record that there is strong suspicion or strong prima facie case for proceeding against the accused. On perusal of the order impugned, it appears that the court below in a simple line has only said that there are sufficient materials available on record to frame charge against the accused persons but the court has not even whispered which are those materials available on record. It is true that it is not required to martial the materials and evidence on record with a view to decide the complicity thereof but mere saying that there is sufficient material to frame charge is not enough. It is true that it is not required to martial the materials and evidence on record with a view to decide the complicity thereof but mere saying that there is sufficient material to frame charge is not enough. I find that the court below has not even whispered about the witnesses examined during investigation as recorded in the case diary and the materials in the order impugned. 7. In the result, the impugned order cannot sustain. It is, accordingly, set aside and this revision application is allowed with direction to the court concerned to pass appropriate order afresh as early as possible after considering the materials and evidence available on record. Application allowed.