Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.545 of 2009 ====================================================== Bisheshwar Tiwary son of late Giriwardhari Tiwary, resident of village- Dhamwal, P.S. Shahpur, District- Bhojpur, Bihar .... .... Petitioner/s Versus 1. The State of Bihar 2. Shambhu Yadav son of Rajendra Prasad @ Rajo Mukhiya, resident of village- Bashwan Bigha, PS. Bihar Sharif, District Nalanda. .... .... Opp. Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Devendra Kumar Sinha, Sr. Adv., with Mr. P.N.Pathak, Adv. For the State : Mr. Satyendra Nr. Singh, APP For O.P. No. 2 : Mr. Pramod Kumar, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 3 11-10-2012 Heard Mr. Devendra Kumar Sinha, learned Senior counsel appearing on behalf of the petitioner, learned Additional Public Prosecutor, appearing on behalf of the State and Mr. Pramod Kumar, learned counsel appearing on behalf of the opposite party no.2. The petitioner has approached this Court under Sections 397 & 401 of the Code of Criminal Procedure, 1973, questioning the correctness and propriety of the order dated 05.02.2009 passed by the learned Chief Judicial Magistrate, Nalanda at Bihar Sharif in Bihar P.S. Case No. 93 of 2003, whereby prayer made on behalf of the petitioner for his discharge in terms of Section 239 Cr.P. C., has been rejected. Mr. Sinha, learned Senior counsel, submits that the petitioner, at the relevant time, was posted and working as Executive Engineer, P.W.D., and there is no material available on record to show that the opposite party no.2, i.e. the informant of the criminal case, had supplied the sand and stone chips for Patna High Court CR. REV. No.545 of 2009 (3) dt.11-10-2012 2 / 3 2 construction of Government road, undertaken by the petitioner and his subordinates. He contends that there was no agreement signed for supply of sands and stone chips by the O.P. No.2, therefore, the claim/ allegation made on behalf of the opposite party no.2 in the FIR is not at all reliable and on that ground alone, the petitioner is entitled to be discharged from the criminal case. Learned Additional Public Prosecutor appearing on behalf of the State and the learned counsel appearing on behalf of the Opposite party no.2 have opposed the prayer. It has been submitted on behalf of the opposite parties that F.I.R. (Annexure- 1) was lodged by opposite party no. 2 for offences under [STATUTE] . In the FIR (Annexure-1) the petitioner is specifically named as an accused and there is specific allegation against him for commission of crime in question. On close of investigation charge sheet was submitted against the petitioner and, accordingly, cognizance has been taken by the learned Chief Judicial Magistrate, Nalanda at Biharsharif by an order dated 12.10.2007 for offences under [STATUTE] ., vide Annexure-7. Thereafter, when the matter was taken up for trial, a petition was filed on behalf of the petitioner for his discharge from the criminal case, which has been rejected by the impugned order dated 05.02.2009. After having heard learned counsel for the parties, this Court does not find any legal infirmity or procedural irregularity committed by the learned Judicial Magistrate, Nalanda at Biharsharif, rejecting the prayer for discharge made on behalf of the petitioner. It is well settled that at the time of framing charge the probable defence of an accused cannot be taken into consideration and for that also, evidence is required to be recorded Patna High Court CR. REV. No.545 of 2009 (3) dt.11-10-2012 3 / 3 3 during the course of trial. The Hon’ble Apex Court in the case of Union of India v. Prafulla Kumar Samal and another, [AIR 1979 SC 366], in paragraph 10 has elaborately laid down the principles of discharge of an accused from a criminal case. As per ratio laid down by the Hon’ble Apex Court, the Court would be fully justified in framing charge against the accused on the basis of materials placed before it even if a grave suspicion against the accused person is shown. The court is required to find out only a prima facie case for the purpose of framing charge In view of the law laid down by the Hon’ble Apex Court in the case of Union of India v. Prafulla Kumar Samal and another (supra), this Court does not find it a fit case for exercising its revisional jurisdiction for setting aside the impugned order dated 05.02.2009 refusing the prayer of discharge made on behalf of the petitioner. Accordingly, the petition has to be rejected. However, the petitioner shall be at liberty to raise all the issues which have been raised in the present proceeding, during the course of trial. The application stands finally rejected with the observations and directions indicated above. BTiwary/- (Birendra Prasad Verma, J)

Applicable IPC Section: 323

Statute Text:
Section 323 of the Indian Penal Code. Voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.