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2019 DIGILAW 545 (PAT)

Santosh Kumar @ Santosh Sharma v. State of Bihar

2019-04-09

ADITYA KUMAR TRIVEDI

body2019
ORDER : 1. Petitioner who happens to be an accused relating to Hulasganj P.S. Case No.43/2012, G.R. No.1268/2012 pending before Smt. Namita Singh, Sub-Judge-III/ACJM, Jehanabad has challenged the order dated 14.10.2016 whereby and whereunder the learned lower court has rejected the prayer of the petitioner purported to be under Section 239 of the Cr.P.C. 2. As is evident, the case has been registered on the self statement of S.I., Bilas Paswan of Hulasganj P.S. divulging the fact that during course of investigation of case no.40/2012, they have conducted raid at the house of Ram Sujan Sharma lying at village Kewla in order to apprehend. During course of returning, they received confidential information with regard to possession of unlicensed rifle by Lala Sharma @ Manoj Sharma of village-Biro whereupon, raid was conducted and in presence of two witnesses namely Nawal Kishore Sharma and Raghwendra Sharma have was searched whereupon one loaded rifle, containing five live cartridges, in a magazine have been recovered, seized. On query, Lala Sharma @ Manoj Sharma and his son Rajnish Kumar @ Vicky Sharma disclosed that they have purchased it from his co-villager Santosh Sharma for Rs.25,000/-. Accordingly, after registration of Hulasganj P.S. Case No.43/2012 investigation commenced and concluded by way of submission of charge sheet followed with order of cognizance and accordingly, the order impugned. 3. It has been submitted at the end of the petitioner that nothing has been recovered from his possession. Save and except inculpatory confessional statement of a co-accused, no other evidence has been collected by the police. As such, there happens to be no evidence which could justify the finding recorded by the learned lower court. Consequent thereupon, same be set aside. 4. On the other hand, it has been submitted at the end of learned APP that at the stage of 239, 240 of the Cr.P.C. the court has only to see whether the materials having collected during course of investigation suggest that the charge would be ground less. Even, from the inculpatory extra judicial confessional statement of co-accused in the background of recovery is to be considered in the background of Section 27 of the Evidence Act in consonance with the Section 30 of the Evidence Act being admissible against co-accused also. Consequent thereupon, the instant petition is fit to be dismissed. 5. Even, from the inculpatory extra judicial confessional statement of co-accused in the background of recovery is to be considered in the background of Section 27 of the Evidence Act in consonance with the Section 30 of the Evidence Act being admissible against co-accused also. Consequent thereupon, the instant petition is fit to be dismissed. 5. First of all it appears prudent to incorporate Section 239 of the Cr.P.C. which reads as follows: "239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing." 6. From the plain reading of the Section, it is evident that during course of consideration of the plea, the materials having placed in accordance with Section 173 of the Cr.P.C. in consonance with the submission having at the respective end examination of accused, if any, the Magistrate has to consider that the charge so proposed appears to be groundless on account of paucity, would discharge the accused. The apex court, recently in State vs. S. Selvi reported in (2018) 13 SCC 455 , has observed: "It is well settled by this Court in catena of judgments including the cases of Union of India v. Prafulla Samal, (1979) 3 SCC 4 ; Dilawar Babu v. State of Maharashtra (2002) 2 SCC 135 Sajjan Kumar v. CBI (2010) 9 SCC 368 ; State v. A. Arun Kumar (2015) 2 SCC 417 ; Sonu Gupta v. Deepak Gupta (2015) 3 SCC 424 ; State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711 ; Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya (1990) 4 SCC 76 and Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274 that the Judge while considering the question of framing charge Under Section 227 of the Code in sessions cases (which is akin to Section 239 Code of Criminal Procedure pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the Accused has been made out; where the material placed before the Court disclose grave suspicion against the Accused which has not been properly explained, the Court will be fully justified in framing the charge; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the Accused, he will be fully within his rights to discharge the Accused. The Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the statements and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial.” 7. Now in the aforesaid background, the material on record has to be seen. There has been recovery of unlicensed rifle from the possession of co-accused who during course of interrogation has divulged having it purchased from the petitioner for Rs.25,000/-. As the recovery is not on the basis of inculpatory confessional statement of the co-accused and that being so, the inculpatory confessional statement could not be taken into account as prima facie disregard parameter of Section 27 of the Evidence Act whereupon, there would not be applicability of Section 30 of the Evidence Act. Consequent thereupon, the order impugned is set aside. Petition is allowed.