Jharkhand High Court
Md Zakir Khan And Anr vs The State Of Jharkhand And Anr on 5 January, 2016
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 1032 of 2013
1. Md. Zakir Khan,
Son of Md. N.H. Khan, resident of Subhas Chowk, Naya Bazar,
PO, PS & District- Dhanbad
2. Prakas Kumar
Son of Kali Charan, resident of Bhaga No.-4, Lodna More, PO &
PS Jharia, District- Dhanbad .... ... Petitioner(s)
-V e r s u s-
1. The State of Jharkhand
2. Pramod Kumar @ Mantu Saw
Son of Late Bhagwan Das Sahu, resident of Temple Road Manaitand,
PO- Manaitand (Purana Bazar) PS-Dhansar, District-Dhanbad
... ... Opposite Parties
For the petitioners : Mr. Sanjay Prasad, Advocate,
For the State : Mr. Vikas Kishore, A.P.P.
For O.P. No.2 : Mr. Birendra Kumar, Advocate
CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA
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C.A.V. ON: 20/08/2015 PRONOUNCED ON-05/01/2016
Invoking the revisional jurisdiction of this Court under
Sections 397 and 401 of the Code of Criminal Procedure (in short „the
Code‟), the petitioners have questioned the legality of the order dated
26.07.2013passed by the learned Judicial Magistrate, 1 st Class, Dhanbad in C.P. case no.- 679 of 2002 whereby and whereunder the petition filed by the petitioners for their discharge under Section 245 of the Code has been rejected.
2. The facts of the case, which is relevant for the proper adjudication of the issue involved in this revision application, in short, is that at the instance of the opposite party no.2 Pramod Kumar @ Mantu Saw, the aforesaid complaint case was filed with the allegation that the opposite party no.2 has been running cable operator network business under the name and style of " Shiv Shakti Dish Antina" having its control room-cum- Office at his residence under valid licence as per regulation/ordinance and the complainant had given the cable network to different subscribers/customers at their residences and had also appointed sub-cable operators in 2 different areas of Dhanbad Township from whom complainant had been realizing fixed monthly subscription. The accused persons were also appointed in different capacities like sub-cable operator or advertising agent to collect News advertisement. On 09.05.2002, the accused persons came with one A.S.I. of Dhansar Police Station with a notice of proceeding under Section 144 of the Code initiated against the complainant-opposite party no.2 by the S.D.M., Dhanbad in M.P.Case No. 546 of 2002 and locked the control room of the complainant‟s network supply but when the complainant on the next day enquired into matter from the office of S.D.M., Dhanbad Court then found that accused by forging his signature anyhow created an agreement of sale dated 07.09.2001 in which it was stated that the accused persons had given him Rupees Four Lakhs on 07.04.2001 and also agreed to pay by installment and further by forging signature of the complainant on revenue stamp paper paid huge amount to the complainant and the accused persons had also forged his signature on each page of the agreement of sale and this way, the accused persons had committed an offence of forgery by creating transfer instruments and valuable securities/promissory notes with a view to cheat the complainant. It is also stated in the complaint petition that thereafter the complainant moved before the S.D.M., Dhanbad but as no proceeding was initiated at the instance of S.D.M., Dhanbad and no order was ever passed, the said court refused to pass any order for unlocking the control room. Thereafter, he filed a criminal revision bearing no. 89 of 2002, which was allowed and on the direction given by the S.P. Dhanbad, his control room and offices were opened.
3. It appears from the record that the court below after examining the complainant on S.A. and other witnesses found prima facie case and took cognizance of the offence under Sections 193, 465, 467, 468, 469 and 120(B) I.P.C. and directed to issue summons for appearance of the petitioners. After their appearance, the case was fixed for evidence before charge and the complainant examined two witnesses. The petitioners filed a petition for their discharge but the 3 court below finding sufficient materials rejected the same by the order impugned. Hence, this revision.
4. Mr. Sanjay Prasad learned counsel appearing for the petitioners assailing the order impugned as perverse and bad in law seriously contended that the court below without appreciating the evidence available on record in right perspective passed the order impugned in a mechanical way. It was also submitted that the opposite party no.2 has not brought any material or documents in course of evidence in the court below, which clearly stipulates that there is nothing on the record to show the complicity of the petitioners in the alleged offence.
5. Contrary to the aforesaid submissions, the learned counsel representing the opposite party no.2/complainant by filing a counter affidavit seriously contended that the court below after examining the evidence available on record rightly passed the order impugned, which would appear from the fact that on the request of this opposite party, the court directed the petitioners to produce the agreement of sale and money receipts, which were in custody of the petitioners and also filed a petition under Section 65 of the Evidence Act with a prayer for marking of those documents but a rejoinder was filed by the petitioners on the ground that those two documents are not admissible in law being unregistered and unstamped.
6. Before adverting to the rival submissions, it would be proper to examine the scope and ambit of the power of the court below under Section 239 and 245 of the Code. The Criminal Procedure Code contemplates the discharge of an accused if the case is triable by a Court of Sessions under Section 227 of the Code but if the case is instituted upon a police report and is triable by a Magistrate then it is covered by Section 239 of the Code. The cases instituted otherwise than on a police report i.e. Complaint are dealt with in Section 245 of the Code. However in a Complaint Case as contemplated under Section 244 of the Code, the evidence collected during examination of witnesses before charge shall only be 4 considered at the time of framing of charge or for adjudication of petition filed for discharge by an accused. There is basically no difference in a discharge petition filed either under Section 227 or 239 of the Code but the consideration under Section 245 of the Code is different though the principle would be the same. The above two provisions of the Code provide that upon consideration of the evidence and the documents submitted with the police report as contemplated under Section 173 of the Code and after hearing the prosecution and the accused, if the Courts find a prima facie case and grave suspicion to proceed against the accused, the charge has to be framed but if there is no prima facie case, or suspicion, the Court shall discharge the accused. The settled law at this point is succinctly analyzed by the Hon‟ble Supreme Court in Sajjan Kumar Vs. CBI [(2010) 9 SCC 368 ] wherein the Hon‟ble Court has observed in para 19 as under:
" 19. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial."
7. In a case Rajiv Thapar and others Vs. Madan Lal Kapoor; (2013) 3 SCC 330, the Hon‟ble Supreme Court while dealing with the issue of discharge in a complaint case, lodged at the instance of father of a deceased girl, held in paragraph- 28 as follows:-
"28. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations 5 levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations brining out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."
8. True, it is that at the time of consideration of the application for discharge, the court cannot act as mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass the order of discharge. It is trite that at the stage of consideration of an application for discharge, specially when the petition has been filed for discharge under Section 245 of the code, the court has to proceed on the basis of deposition of the witnesses examined under Section 244 of the Code.
9. Apparently, after disposal of the Criminal Revision no. 89 of 2012, on the direction of the Superintendent of Police, Dhanbad, control room and office of the opposite party no.2 were opened and this clearly stipulates there was some dispute between the petitioners and the complainant/opposite party no.2. At this stage, as settled by the Hon‟ble Supreme Court in various judgments, roving inquiry into the pros and cons of the matter and weighing the evidence as if the court is conducting trial, is not permissible. The evidence of the complainant besides the depositions of two other witnesses recorded under Section 244 of the Code were before the court below and finding sufficiency of materials, the grave suspicion and evidences, the court below, rejected the prayer for discharge by the order impugned.
610. In view of the discussions made above, I do not find any plausible ground to interfere in the order impugned. Hence, this criminal revision, being devoid of any merit is, hereby, dismissed.
(R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 5th January, 2016 Ritesh/N.A.F.R.