Mathura Prasad and Another vs State of Bihar

S.K. Chattopadhyaya, J.—Heard Mr. Banerjee, learned Counsel for the petitioners and Mr. Mahto, learned Counsel for the State.

Pursuant to order dated 5.3.1998 lower Court records alongwith case diary have been received.

In this case the order dated 11.8.1997 passed by Sri O.P. Rai, learned Judicial Magistrate, 1st Class, Hazaribagh has been impugned, by reason of which the prayer made by the petitioners for their discharge has been rejected.

Short fact of the case is that the officer-in-charge of Ramgarh Police Station, on receiving a secret information about theft of cable, raided the house of the petitioners on 12.2.1994. On raid no cable was found from the premises of the petitioners but some jwelleries were found kept in a different bundles. It is alleged that the petitioners could not show any document in relation to those jewelleries. Merely on this, the police presumed that these jwelieries were stolen articles and thus seized those jwelleries and registered a case u/s 414, IPC against the petitioners. Cognizance was taken under Sections 414 and 384 of the Code and when the petitioners moved the Magistrate with a prayer to discharge on the ground that case-diary does not reveal any complicity of the petitioners in respect of the said cable, the prayer has been rejected.

From the impugned order, it appears that the learned Magistrate his completely forgotten the well establishment of law that while considering a prayer for discharge he should not rely merely on the submission made on be half of the prosecution, he is bound to go through the case-diary, cautiously before coming to the conclusion that a specific case has been made put against the accused.

In the instant case admittedly the F.I.R was lodged u/s 379, IPC in respect of alleged theft of cable. There is nothing on record to show that any theft case was registered even against unknown in respect of theft of jwelleries for which the premises of the petitioners were raided by the police. Even assuming that in course of investigation of the case of theft of cable the police raided the house of the petitioner but admittedly no cable was found and the petitioners being money-lenders and income tax payee were found in possession of some jwelleries kept in some bundles. The Magistrate should have appreciated as to how those jwelleries could have been seized by the police without any case being registered. Having some jwelleries and ornaments in a family is a common feature. Only if the documents are not produced immediately in respect of these ornaments, it cannot be presumed that those were stolen properties. Moreover there is no denial of the fact that subsequently those seized articles were released in favour of the petitioners, which establish the ownership of the petitioners.

Mr. Mahto after going through the case-diary, fairly submitted that in the whole case-diary there is no allegation against the petitioners that they were involved in any theft case either in respect of the aforesaid cable or the jwelleries.

The learned Magistrate has only referred paragraph 6 of the case-diary which merely reveals that the police raided the premises of the petitioners in respect of a case u/s 379 of the Code and during raid when the petitioners could not give satisfactorily reply, those jewellery were seized. The Magistrate has come to a positive finding that during that raid cable were not recovered. Earlier the Magistrate might have taken cognizance u/s 414 read with Section 384 of the Code but in my view, that was an initial stage and before taking cognizance of Magistrate is required to be prima facie satisfied about the offence alleged. But at the stage of framing of charge the Magistrate is required to apply his mind to the statements of he witnesses recorded by the Investigating Officer to come to a finding as to whether there was at least suspicion that the accused have committed an offence. It is true that meticulous examination of police paper is not required but Magistrate must apply his judicial mind to the facts of the case. In the instant case, in my view, the Magistrate has failed to discharge his duty and completely erred in exercise in its jurisdiction.

In the result, this application is allowed and the order taking cognizance dated 11.8.1997 is quashed. The matter is remitted to the Magistrate for considering afresh on the basis of case-diary and in accordance with law. It is needless to say that while deciding afresh the parties will be given reasonable opportunity of being heard.