IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.27009 of 2009
Yogendra Sharma
Versus
State Of Bihar & Anr
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4 8th September,2011 This petition has been filed under section 482 of the Cr. P.C. for
quashing of the order dated 16.12.2008 passed by Sri D.S.Srivastava,
Judicial Magistrate, Ist Class, Gaya in Khizersarai P.S. Case no.
19/2008 corresponding to trial no. 1707/2008 by which he has rejected
the petition for discharge and also for quashing of the order dated
31.3.2009 passed by the Addl. Sessions Judge FTC No. IV, Gaya in
Cr. Revision no. 3 of 2009/ 2 of 2009 by which and whereunder he
dismissed the revision application filed on behalf of the petitioner.
2. The brief fact which lies to file this petition is that Khizersarai
P.S. Case no. 19/2008 was lodged on the basis of written complaint by
the Assistant Mining officer against the petitioner and one Nagina
Kumar on the allegation that the petitioner and co-accused Nagina
Kumar were illegally mining stones without having any lawful
authority. After completion of investigation, charge sheet was
submitted and cognizance was taken. A petition for discharge was
filed on behalf of the petitioner mentioning therein that no case is
made out against the petitioner. The learned trial court rejected the
above stated discharge petition passing impugned order dated
16.12.2008 against which the petitioner and co-accused Nagina
Kumar preferred Cr. Revision no. 3 of 2009/ 2 of 2009 in the court of
learned Sessions Judge, Gaya, who subsequently, transferred the
above stated criminal revision to the court of Addl. Sessions Judge
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FTC No. IV, Gaya who having heard the parties dismissed the above
stated criminal revision passing impugned order dated 31.3.2009.
3. Learned senior counsel Sri Yogesh Chandra Verma,
appearing for the petitioner, assailed the impugned order submitting
that the learned trial court has passed the impugned order dated
16.12.2008 in mechanical way and the learned trial court has not
applied his judicial mind while passing impugned order dated
16.12.2008. It is further contended by him that in impugned order
dated 16.12.2008, the learned trial court has not given any reason for
rejecting the discharge petition filed on behalf of the petitioner. It is
further contended by him that the learned trial court was required to,
at least, examine the facts as stated in the application seeking
discharge and also required to briefly mention materials as collected
by the police in course of investigation with reference to the case diary
but having not done so, the learned trial court has committed grave
error of law and similarly, revisional court has also over-looked the
aforesaid defect while passing the impugned order dated 31.3.2009 in
Cr. Revision no. 3 of 2009/ 2 of 2009. Learned senior counsel Sri
Verma, relied on a decision of this court passed in Manoranjan Singh
& ano vs. State of Bihar and ano. reported in 2008 (I) PLJR paged
734 wherein, it has been held by this court that petition for discharge
should not be simply rejected in a routine and mechanical manner by
stating that since the Magistrate has taken cognizance for the offences
or that in the case diary, there are sufficient evidence for framing of
charge, application seeking discharge can not be rejected.
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4. It is further contended on behalf of the petitioner that, as a
matter of fact, the petitioner was valid lease holder and the seized
stones were quarried from his leased area and the Challan was also
issued for transporting the same and, therefore, the impugned orders
are liable to be quashed.
5. Learned Addl. Public Prosecutor appearing for the State
supported the impugned orders and submitted that it is not necessary
for the trial court to give reason while rejecting the discharge petition.
It is further contended by him that the learned trial court has
specifically mentioned in several paragraphs of the case diary in the
impugned order dated 16.12.2008 and similarly, Addl. Sessions Judge
FTC No. IV, Gaya has dismissed the Cr. Revision no. 3 of 2009/ 2 of
2009 passing a detailed order and Addl. Sessions Judge FTC No. IV,
Gaya has referred materials which have come against the petitioner in
course of investigation in the impugned order dated 31.3.2009 passed
in the above stated criminal revision petition.
6. Having heard the rival contentions of both the parties I have
gone through the record as well as decision cited on behalf of the
petitioner. It would appear from perusal of the record that tractor
bearing registration no. BR 25/6936 laden with stones was seized by
the mining officials on 18.3.2008 and subsequently, on the basis of
written complaint the above stated Khizersarai P.S. Case no. 19/2008
was registered against the petitioner and driver of the aforesaid tractor
under various provisions of Mines Act as well as Indian Penal Code.
7. The stand of the petitioner is that he was granted lease for
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mining on 12.12.2004 for a period of five years relating to plot no.
176 area one acre situated in village Sahwazpur Police station
Khizersarai district Gaya but the Addl. Sessions Judge FTC No. IV,
Gaya has observed in Cr. Revision no. 3 of 2009/ 2 of 2009 that the
driver of the above stated tractor had disclosed to the informant that he
had brought mining stones from Chotiya Pahar and he had regularly
been transporting stones from the aforesaid area.
8. Admittedly, the petitioner was granted lease for mining
relating to plot no. 176 situated in village Sahwazpur Police station
Khizersarai district Gaya whereas the seized stones were mined out
from Chhotiya Pahar and the aforesaid area of Chhotiya Pahar was
never leased out in favour of the petitioner.
9. No doubt, the learned trial court has only referred some
paragraphs of the case diary and came to the conclusion that there
were sufficient materials to frame charge against the petitioner and he
has not given details of the materials, which have come in paragraphs
as referred by the learned trial court but admittedly, revisional court in
its order dated 31.3.2009 has specifically mentioned the materials
which have come against the petitioner. So, even if the learned trial
court has failed to mention the materials available on the case diary
against the petitioner in the impugned order dated 16.12.2008, then
also, the aforesaid irregularity does not make any difference because
the learned revisional court has already mentioned materials which are
available on the case diary to frame charge against the petitioner and,
therefore, in my view, the decision reported in 2008(I) PLJR 734 is
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not applicable in the present case because in that case the matter was
returned to the court below for passing reasoned order in accordance
with law as this court felt some inconvenience and the court was not
in a position to judge the correctness of the order passed by the
learned trial court in absence of the materials collected by the
Investigating officer in course of investigation. So far as the present
case is concerned, the order dated 31.3.2009 passed by the revisional
court clearly speaks the materials available against the petitioner for
framing charge and, therefore, there is no necessity to remit back the
present matter to the court below for passing afresh and reasoned
order.
10. Learned senior counsel appearing for the petitioner also
relied upon decision reported in (1977) 2 Supreme Court Cases page
699 (State of Karnataka & ano vs Muniswamy & others wherein it has
been held by the Hon’ble Supreme court that the High court can in its
inherent power quash proceeding on account of insufficiency of
evidence as well as to prevent abuse of the process of the court.
11. No doubt, the court can quash a proceeding to prevent the
abuse of the process of law or to meet the ends of justice but in the
present case, prima facie, there is nothing on record to show that
continence of the present proceeding against the petitioner is amount
to abuse of the process of law and, therefore, in my view, the decision
cited above is not applicable in the facts of the present case.
12. On the basis of the above stated discussions, in my view, this
petition does not have any force. Accordingly, this petition stands
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dismissed on admission stage itself.
Shahid ( Hemant Kumar Srivastava,J)