====================================================== 1. Jai Narayan Pandey, son of Kuber Pandey. 2. Neyaz Ahmad Khan, son v. The State Of Bihar
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.43 of 2011 ====================================================== 1. Jai Narayan Pandey, son of Kuber Pandey. 2. Neyaz Ahmad Khan, son of Navi Hasan Khan. Both residents of village-Meghawal Mathiya, P.S.-Ram Nagar, District- West Champaran. .... .... Petitioner/s Versus The State Of Bihar .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Amrendra Nath Verma, Adv. For the State : Mrs. Sharda Kumari, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 2. 12-07-2013 Heard learned counsel for the petitioners as well as learned Additional Public Prosecutor.
Facts
Petitioners have challenged order dated 03.11.2010
Legal Reasoning
presence of prima facie case or the charge to be groundless, happens to be within exclusive domain of the court. Revisional power would not be exercised in terms of replacing its own finding. Consequent thereupon, I do not see any merit in this petition. Thus instant petition is rejected. (Aditya Kumar Trivedi, J) PN/-
Arguments
passed by Sri Pankaj Chauhan, Judicial Magistrate, 1st Class, Bagha, West Champaran in G.R. No.490 of 2005 whereby and whereunder the prayer of the petitioners so made under Section 239 of the Cr.P.C. has been rejected. It has been submitted on behalf of petitioners that the instant proceeding suffers from vagueness because of the fact that neither date of occurrence has been incorporated in the written report nor place of occurrence and on account thereof, no charge could be framed. It has also been submitted by annexing statement of so many witnesses as well as referring so many paras of the case diary as Annexure-P/2 that none had supported the case of the prosecution. Not only this it has also been found by the I.O. through the statement of the Patna High Court CR. REV. No.43 of 2011 (2) dt.12-07-2013 2 witnesses that informant was adamant to grab land of petitioner no.2, Niyaz Ahmad Khan for construction of a house under Indira Awas Yojna and having protest at the end of petitioner no.2, got his case filed at the instance of enemies of the petitioner. No charge sheet has been filed which could have enable the court to trace out whether the statement so furnished under Annexure-P/2 happens to be that of charge sheet witness. However, from the order impugned it is evident that para-32 of the case diary has been taken into account by the learned lower court which happens to be the statement of one Bangali Ram, the husband of the informant. While considering the case at the stage of the framing of charge in a warrant case having instituted on police report two sections are relevant and needs conjoint reading which are Section 239 as well as 240 of the Cr.P.C. Section 239 prescribes the scope of discharge when the court after considering the documents which has been submitted in terms of Section 173 of the Cr.P.C. finds the charge to be groundless, that means to say whatever allegations happens to be, on that very basis the charge could not be framed. This happens to be the prerogative of the court circumscribed by the documents having been placed in terms of Section 173 of the Cr.P.C. Section 173(2)(c) requires the names of the witnesses should be incorporated therein and further the submission of report should follow with all the relevant materials coupled with the case diary. The scope of the trial court at the stage of framing of Patna High Court CR. REV. No.43 of 2011 (2) dt.12-07-2013 3 charge as well as the power to be exercised by the revisional court has been fully discussed by the Hon’ble Apex Court in Ashish Chadha v. Smt. Asha Kumari & Anr. reported in 2012 Cr.L.J. 773 and the relevant para happens to be 13 & 14. “13. The High Court has in its revisional jurisdiction appraised the evidence which it could not have done. It is the trial court which has to decide whether evidence on record is sufficient to make out a prima facie case against the accused so as to frame charge against him. Pertinently, even the trial court cannot conduct roving and fishing inquiry into the evidence. It has only to consider whether the evidence collected by the prosecution discloses prima facie case against the accused or not. In this connection, we may usefully refer to the observations of this Court in Munna Devi v. State of Rajasthan & Anr. “3. We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.” 14. Ignoring the above settled position in law, the High Court has noticed that fake entries were made in the revenue records during the years 1973-1974; that Respondent 1 was married to Brijender Singh in 1978 and that there is no evidence that before her marriage, Respondent 1 was not residing in her parents’ house in Madhya Pradesh as is her case but was residing in Chamba with her prospective in-laws. The High Court has then concluded that it cannot be held, prima facie, that Respondent 1 was a conspirator in bringing about the fake entries in the revenue records in the years 1973-1974. It cannot be forgotten that it is also the prosecution case that Respondent 1 obtained three powers of attorney from three of the tenants in January 1993 and, on the basis thereof, she made two fraudulent sales in favour of her husband, Brijender Singh. Two wills are stated to have been fabricated by her husband Brijender Singh to get government land transferred in his name. The facts are inextricably interwoven. Brijender Singh, the husband of Respondent 1 is stated to be deeply involved in the alleged conspiracy. In such circumstances, the High Court should have left the final adjudication to the trial court by not quashing the charge. The High Court unnecessarily observed that the charge is vague. It overstepped its revisional jurisdiction. It is contended that the State of Himachal Pradesh had taken a stand that the revenue entries concerned are genuine. In our opinion, whether the revenue entries concerned are genuine or not will also have to be decided by the trial Patna High Court CR. REV. No.43 of 2011 (2) dt.12-07-2013 4 court after perusing the evidence led by the parties”. Now coming to the submission raised on behalf of petitioner the same is to be seen in light of observation made by the Hon’ble Apex Court and on account thereof, the consideration of