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Patna High Court – Orders
Ram Nandan Prasad @ Lakhan Lal vs The State Of Bihar & Anr. on 13 September, 2011
                        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.
                                                  -----------

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


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