Rameshwar Prasad Narain Singh and Ashutosh Prasad Narain @ Ashutosh Kumar vs The State of Bihar and Ram Naresh Rai

Mandhata Singh, J.—Heard both the parties.

Legality, correctness and propriety order dated 06.02.2002 passed by Sub-Divisional Judicial Magistrate, Patna in G.R. No. 2355 of 1998 whereby petitioners'' application u/s 239 of Cr.P.C. to discharge is rejected.

Prosecution case in brief is to the effect that there was negotiation for the marriage of informant''s niece with petitioner No. 2, for which some dowry was demanded, informant''s briefcase with cash was taken away and he was assaulted also.

Now, submission of the learned Counsel for the petitioners is that all five persons were made accused in the case including brother-in-law, his father and sister of petitioner No. 2 with specific allegation. According to the learned Counsel, every negotiation was there on behalf of brother-in-law and his father namely Ram Babu, Radhe Shyam Thakur respectively. Demand, if any, is made on their behalf only. Further, when some differences cropped up assault was also caused on their behalf. Theft is alleged about taking away of briefcase with cash but by sister of the petitioner No. 2, Archana Devi. All the three, Archana, Radhe Shyam and Ram Babu approached the High Court in a quashing proceeding vide Cr. Misc. No. 16451 of 1999 and cognizance is not much relevant here because of the reason that petitioners'' prayer for discharge is refused and that is challenged only. Framing of charge is possible only if there remains some allegation.

According to the learned Counsel for the petitioners, none of the witnesses named these petitioners rather in restatement. Informant is making every allegation against Ram Babu, Radhe Shyam Thakur specifying that brother-in-law of petitioner No. 2 and his father told them about making provision of a Maruti Car as one of the terms of marriage and further on the point of assault and theft. It has come that Radhe Shyam assaulted the informant by means of slaps, while Archana Devi took away informant''s briefcase with Rs. 5,000/- Another witness in paragraph-8 is not corroborating that much of the statement. That is further repeated by witness No. 9.

It appears that learned S.D.J.M. has not gone through the statement recorded in the case diary. No doubt, prima facie assertion is sufficient for constituting offence and strong suspicion is sufficient for framing of the charge but in absence of prima facie case, no charge can be framed.

In the instant case, I find no allegation of demand, assault or theft by any of the petitioners which has not be considered till now, even then prayer for discharge is rejected.

Accordingly, the revision application is allowed. The impugned order dated 06.02.2002 passed by the learned S.D.J.M.. Patna in G.R. No. 2355 of 1998 (Arising out of Kadam Kuan P.S. Case No. 400 of 1998 is set aside and at the same time, prayer for discharge is allowed.