Kamal Kumar Sinha @ Kamal Kishor Sinha vs State Of Jharkhand through Vigilance

Heard Mr. Vishal Kumar Trivedi, counsel appearing on behalf of the petitioner along with Mr. Shresth Gautam, Advocate.

Heard Mr. P. K. Appu, counsel appearing on behalf of the opposite party.

This revision application has been filed for the following relief: -

"That it is most humbly stated and submitted that instant application has been preferred for setting aside of the order dated 25.02.2019 passed in connection with Special Vigilance Case No. 87 of 2010 arising out of Jamtara P.S. Case No. 180 of 2010 by the court of Learned District & Additional Sessions Judge I cum Special Judge (ACB), Dumka whereby and where under the discharge application under section 239 of the Cr. P. C. filed by the petitioner has been dismissed on erroneous grounds and for setting aside the order dated 26.03.2015 (Annexure III) and the entire criminal proceeding, with all consequences emanating out of it presently pending before the court of Learned District & Additional Sessions Judge I cum Special Judge (ACB), Dumka."

The learned Counsel for the petitioner while referring to the First Information Report indicates that the petitioner is not named in the FIR, as there was no allegation made against the petitioner in the FIR. He submits that the statement of one Rita Bhattacharya, also formed a part of the FIR, wherein she had stated that she used to give bribe money to one Basant Ji. He submits that during investigation, statement of Rita Bhattacharya was recorded u/S 161 of Cr. P.C. in which she has taken the name of the present petitioner and accordingly charge-sheet was filed against the present petitioner as well. He further submits that there is apparent contradiction in the Statement of Rita Bhattacharya which was recorded u/S 161 of Cr. P.C. and that recorded at the stage of filing of the FIR. The learned counsel submits that under such circumstances, the present petitioner had filed his petition for discharge before the learned court below, which has been rejected vide order dated 25.02.2019.

Counsel appearing on behalf of the opposite party, on the other hand, opposes the prayer and submits that the statement of Rita Bhattacharya recorded u/S 161 of Cr. P.C., cannot be said to be contradictory, but the same is just a further statement. He submits that merely because there is some alleged contradiction in her statement which is part of the FIR and her statement recorded before the police, the same cannot be a ground for discharge and ultimately Rita Bhattacharya is required to depose before the learned court below at the stage of trial and it will be open to the petitioner to cross-examine her. He further submits that there is no illegality, perversity and impropriety in the impugned order dated 25.02.2019 passed by the learned court below refusing to discharge the petitioner. The learned counsel submits that the learned court below has relied upon a judgment passed by the Hon'ble Supreme Court in the case of Union of India vs. Prafulla Kumar Samal & Another, which clearly holds that even in case of strong suspicion, it is not open to the court to say that there is no sufficient material for proceeding against the accused. The learned counsel further submits that the points which have been raised by the present petitioner, can be raised at the stage of trial before the learned court below and no interference is called for at this stage.

After hearing the counsel for the parties and the fact that as per the case of the present petitioner himself, there is certain contradiction in the statement of Rita Bhattacharya recorded u/S 161 of Cr. P.C., which formed part of the FIR, this Court is of the considered view that such contradiction by itself cannot be a ground for discharge and these points are required to be taken by the petitioner at appropriate stage of trial before the learned court below. More over the learned court below has also referred to other material collected during investigation to reject the prayer for discharge. This Court does not find any illegality, perversity or impropriety in the impugned order dated 25.02.2019 passed by the learned court below refusing to discharge the present petitioner.

Accordingly, the present revision application, is hereby dismissed.

It is further observed that dismissal of this petition and any observation made in this order, will not prejudice the case of either parties before the learned court below in any manner whatsoever and it will be open to the petitioner to raise all the points which may available to him before the learned court below at appropriate stage.

Let a copy of this order be communicated to the concerned court through 'FAX'.