The Patna High Court dismissed a petition seeking to quash an order rejecting an application for discharge under Section 227 CrPC for an offence under Section 436 IPC, holding the lower court was right to presume the offence based on investigation materials.
Application for quashing the order of Additional Sessions Judge was dismissed.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.11388 of 2013
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All residents of Village- Murli, P.S- Kishanpur, District- Supaul.
.... .... Petitioners
Versus
.... .... Opposite Parties
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER
The petitioners seek quashing of the order dated 18th January, 2013 passed by the learned A.D.J.-II, Supaul in Sessions Trial No. 173 of 2011 whereby and whereunder he has rejected the application of the petitioners filed under Section 227 of the Code of Criminal Procedure for discharging them from prosecution for the offence punishable under Section 436 of the Indian Penal Code.
The petitioners are named accused in Kishanpur P.S. Case No. 60 of 2008 dated 9.5.2008 registered for the offence punishable under Sections 147, 148, 149, 323, 447, 379 & 436 of the Indian Penal Code. The police investigated the case and submitted their report under Section 173 of the Code of Criminal Procedure holding the allegations to be true so far as the other
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Sections of the penal code are concerned but the charge sheet was not submitted for the offence punishable under Section 436 of the Penal Code. On receipt of the police report, the Chief Judicial Magistrate, Supaul took cognizance of the offence punishable under Section 436 of the Penal Code too.
Learned counsel for the petitioners has contended that there is no material on record for proceeding against the petitioners under Section 436 of the Indian Penal Code. He has contended that though there is allegation of causing mischief by fire but as a matter of fact there is no evidence that the dwelling house of the informant was destroyed in the incident and in that view of the matter ingredients of the offence punishable under Section 436 of the Penal Code are not applicable to the facts of the present case.
Having perused the order impugned passed by the learned Additional Sessions Judge-II, Supaul as also from the record, I find that the petitioners had earlier challenged the order taking cognizance before this court in Cr. Misc. No. 11854 of 2010 which was dismissed by a Bench of this Court vide order dated 9th December, 2010. Apparently, while passing the impugned order the court below has taken into account the materials collected in course of investigation including statement of witnesses recorded under Section 161(3) of the Code of Criminal Procedure and found sufficient materials to proceed against the petitioners for the offence punishable under Section 436 of the Penal Code too.
It is well settled that at the stage of framing of charge, the court cannot apply its judicial mind so as to decide whether or not there is any ground for presuming the commission
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of offence by the accused. At this stage, the court is not required to hold mini trial for the purpose of arriving at the conclusion that it is likely to lead conviction.
In that view of the matter, I do not find any merit in the present case. The application is, accordingly, dismissed.
(Ashwani Kumar Singh, J)
Sanjeet/-
2 issues framed by the court
Whether the application for discharge under Section 227 CrPC regarding offence under Section 436 IPC should be allowed.
Whether the court can apply judicial mind to decide if there is ground for presuming commission of offence at charge framing stage.
3 provisions across 2 enactments
Yogendra Mandal and others
The State of Bihar
Chandra Shekhar Jha
Ashwani Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
