IN THE HIGH COUR T OF JUDICATURE AT PATNA
Cr.Misc. No.16295 of 2011
Ram Nandan Prasad @ Lakhan Lal, son of Late Ram Chandra Prasad,
resident of mohalla- Rikabganj, P.S.-Tekari, District-Gaya.
.........Petitioner.
Versus
1. The State of Bihar.
2. Arbind Kumar, son of Late Laxmi Narain Singh, resident of Mohalla-
Rikabganj, Ward No.6, P.S.-Tekari, District-Gaya.
.....Opposite parties.
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2 13.09.2011 Petitioner / accused has come up against an order dated
17.3.2011 passed by Sri Parbal Dutta, Judicial Magistrate, Ist Class,
Gaya in connection with Tekari P.S. Case No.27 of 2008, G.R. No.268
of 2008, Trial No.1113 of 2010 whereby and where under a petition
under Section 239 of the Cr.P.C. filed on behalf of petitioner has been
rejected. Shorn of unnecessary details, from Annexure-6 of the petition
it is evident that petitioner had approached this Court at an early count
vide Cr. Misc. No.7647 of 2009 challenging the order of cognizance
which was dismissed on 29.7.2010 on the ground that the grounds
which have been taken by the petitioner was not justifiable at that very
stage. Again the petitioner annexed with the documents, which has
visualized after dispute arisen amongst the parties since after alleged
date of occurrence that means to say from 08.02.2008 through which an
allegation happens to be of demand of Rangdari for permitting the
petitioner to erect mobile tower over his land on 30.10.2007, prayed for
discharge. Its refusal happens to be cause for filing instant petition.
It has been contended on behalf of the petitioner that the
informant had encroached upon the gairmazarua aam land and only to
justify his illegal action entered into an agreement with Tata Indicom
and on the basis thereof, mobile tower by Tata Indicom is being erected
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on the aforesaid gairmazarua aam land and for that he had raised the
issue even up to the Hon’ble High Court by filing C.W.J.C. No.4582 of
2010 and the same was disposed of vide order dated 03.03.2011
(Annexure-9) directing the District Magistrate to take appropriate legal
step in this regard and so the present litigation is suffering from
malafide as well as vengeance. Therefore, petitioner is entitled for
discharge.
It has been contended on behalf of the State that the
aforesaid matter are beyond the scope of present stage. Whatever
defence the petitioner has, available that he will be at liberty to place
during trial.
So far chapter – XIX, Section 239 finds presence of chapter
– XIX which commands “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.”
Its counter part happens to be under Section 240 which
deals with framing of charge and that says “If, upon such consideration
examination, if any, and hearing, the Magistrate is of opinion that there
is ground for presuming that the accused has committed an offence
triable under this Chapter, which such Magistrate is competent to try
and which, in his opinion could be adequately punished by him, he shall
frame in writing a charge against the accused.” Sub-section 2 then
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speaks “The charge shall then be read and explained to the accused,
and he shall be asked whether he pleads guilty of the offence charged or
claims to be tried.”
After having conjoint ready of both the sections it is evident
that at the time of consideration whether the accused is liable to be
prosecuted after getting the proper charge framed against him / or
discharged, the Magistrate has to consider the materials whatever been
placed before him in accordance with section 173. Simultaneously, the
Magistrate is also under obligation to hear the accused going to the
extent of examination. The word examination in this particular
background mean the un-rebuttable document having in possession of
the accused which could deface the prosecution to conclude the
allegation groundless. In order to hold a charge groundless, there
should either be no iota of evidence or the evidence should contra
indicate the offence or they should be other fundamental error in
assuming cognizance of offence. Taking into account the aforesaid
salient feature visualizing from conjoint reading of both the Sections as
discussed above, when the matter in hand is taken together, along with
pleading of petitioner in consonance with the order impugned, it is
found that the petitioner is trying to compel the court to accept his
defence at the present stage instead of inferring otherwise, which as it
appears to be nonchalant.
Accordingly, I do not see any illegality in the order
impugned. Consequent thereupon instant petition is dismissed.
(Aditya Kumar Trivedi, J.)
PN
