Awadhesh Kumar Singh vs State of Jharkhand

D.K. Sinha, J.—This Criminal Revision is directed against the order impugned dated 13.5.2009 by which the petition filed on behalf of the petitioner u/s 239 Cr.P.C. for his discharge was dismissed by Shri B.B. Gautam, Judicial Magistrate, Ist Class, Dhanbad in Dhanbad P.S. Case No. 391 of 2006 corresponding to G.R. No. 1802 of 2006.

The prosecution story in short was that one Dr. Rajendra Paswan, District Leprosy Officer, Dhanbad in his written report presented before the Officer-in-charge of Dhanbad police station alleged that one Ramchandra Prasad, working as regular Non-Medical Assistant in Govindpur, Leprosy Control Centre, was never appointed as per inquiry letter No. 96 dated 24.2.2006 furnished by the District Leprosy Officer,. The said Ramchandra Prasad had submitted his joining report on the forged document by impersonating himself as Government Servant. The Investigating Officer after investigation of the case submitted charge sheet against the petitioner Awadhesh Kumar Singh and one Ganauri Singh including the principal accused Ramchandra Prasad for the alleged offence under Sections 420/467/468/472/471 of the Indian Penal Code. Accordingly, cognizance of the offence was taken against the accused persons under the aforesaid sections. Though the petitioner was appointed as a Medical Officer on 5.6.1972 but he was posted as Director, Health and Family Welfare Department, Government of Jharkhand since 16.1.2006.

After cognizance of the offence was taken, the petitioner preferred a petition u/s 239 Cr.P.C. for his discharge stating therein that he was not at all responsible for any cheating or impersonation alleged to have been committed by the principal accused Ramchandra Prasad but the learned Magistrate by its order dated 13.5.2009 without appreciating the defence of the petitioner rejected the petition filed u/s 239 Cr.P.C. with the observation:

I have gone through the FIR, Case diary and other materials available on record. I find that prima facie sufficient materials are available on record against the accused-petitioner to frame charge under sections 420/467/468/471/472/120B of the Indian Penal Code in this case. The point raised by the defence is the subject matter of trial. Hence, the discharge petitions dated 16.1.2009 and 20.2.2009 are hereby rejected. The accused persons are directed to remain present physically on 9.6.2009 for framing of charge.

The learned Counsel Mr. Anoop Kumar Mehta assailed the impugned order by submitting that in Catena of decisions the Hon''ble Courts were consistent that whenever any discharge petition is filed on behalf the accused, duty is cast upon the trial court to point out at least the nature of prima facie materials available against the accused to proceed against him but in the instant case such principle was not followed and the petition of the petitioner for his discharge was rejected without discussing as to what prima-facie materials were available so as to infer sufficient materials on record to proceed against the petitioner for the alleged offence. The Supreme Court of India in Satish Mehra Vs. Delhi Administration and Another, observed:

Similar situation arises u/s 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the code enjoins on the court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the court at that stage. Here the ''ground'' may be any valid ground including insufficiency of evidence to prove the charge.

The learned Counsel finally submitted that the petitioner was prevented to place his defence at the time of framing of charge and the learned Magistrate did not apply his judicial mind and grossly erred by not considering the petition filed on behalf of the petitioner u/s 239 Cr.P.C. and hence the order impugned is unsustainable under the law.

Having regard to the facts and circumstances of the case, I find substance in the arguments advanced on behalf of the petitioner that the learned Judicial Magistrate without application of judicial mind and without pointing out at least some prima facie materials against the petitioner to his subjective satisfaction available in the case diary or any other documents on the case record rejected the petition of the petitioner and therefore, the order impugned cannot be sustained under the law. Accordingly, this Cr. Revision is allowed by setting aside the order impugned dated 13.5.2009, however, with the direction to the Judicial Magistrate, Dhanbad to pass an order afresh on the petition of the petitioner u/s 239 Cr.P.C. within a reasonable period.