IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12177 of 2010 Priyabrat Singh, son of late Dharnidhar Singh, resident of Village Abhaypur, P.S. Piri Bazar, District Lakhsarai. -------- Petitioner Versus The State of Bihar ----- Opp. Party With Cr.Misc. No.20186 of 2007 Priyabrat Singh, son of late Dharnidhar Singh, resident of Village Abhaypur, P.S. Piri Bazar, District Lakhsarai. -------- Petitioner Versus The State of Bihar ----- Opp. Party ----------- 4 22.09.2010 Cr.Misc. No.12177 of 2010 Having heard Mr. Shiva Nandan Ray, learned senior counsel for the petitioner and for the reasons mentioned in this application, the prayer made therein, is allowed and the order dated 29.1.2010 passed in Cr. Misc. No. 20186 of 2007, is hereby recalled. Cr. Misc. No. 20186 of 2007 This application has been notified today and heard along with Cr. Misc. No. 12177 of 2010 itself. As the earlier order dated 29.1.2010 in this case was passed without hearing the counsel, this Court today in Cr.Misc. No. 12177 of 2010 has recalled such order and has thereafter also heard Mr. Shiva Nandan Ray, 2 learned senior counsel for the petitioner and the learned counsel for the State at length. The impugned order, refusing prayer of the petitioner for discharge for offence under Section 448/504/323/354/34 of the Indian Penal Code, has been assailed on the ground that after the police had submitted a Final Form against the petitioner, the learned Magistrate, without there being any cogent material on record, had chosen to differ with the police report and had taken cognizance and as such, the petitioner, at the first possible opportunity, at the time of framing of charge, had filed a petition for discharge but, the same was rejected on the erroneous assumption of fact and law. In this context, Mr. Roy has tried to emphasize that when there were clear statements of a few witnesses ruling out any role or even presence of the petitioner at the place of occurrence, the trial court ought to have not relied on the statement of the informant alone for the purpose of framing of charge against the petitioner. In this context, learned senior counsel has also placed 3 reliance on a judgment of the Apex Court in the case of State of NCT of Delhi Vs. Ravi Kant Sharma & Ors. reported in 2007 AIR SCW 1334 to buttress his submission that the opinion of the Investigating Officer cannot be taken to be the statement under Section 161 of the Code of Criminal Procedure (Cr.P.C.) and at least, such opinion cannot be held to be relevant for the purposes of examining the materials so collected in course of investigation by the police. In the considered opinion of this Court, the statement of the informant by itself was good enough for framing charge against the petitioner, inasmuch as, he has specifically not only named the petitioner but has also alleged the overt act committed by him with regard to the offence, in question. Such statement of the informant in course of further investigation was also corroborated by the informant in paragraph no.2 of the Case Diary by reiterating his version made in the First Information Report. Additionally, the Investigating Officer at the same time immediately after recording of the First 4 Information Report had examined the wife of the informant, namely, Abha Devi, who also had supported the version of her husband by stating that the occurrence had taken place in the manner it was stated by her husband. The factum of the occurrence was supported also by one Chhote Narayain Singh, who in paragraph no.8 of the Case Diary, has claimed to be an eye witness but he did not name the petitioner specifically. Thereafter, a few independent witnesses are said to have stated before the police that the petitioner was falsely implicated. The police on the basis of such conflicting statement of the witnesses had chosen to prefer the statement of the other persons by ignoring the version of the family members, namely, informant and his wife and that is how, the learned Magistrate, having found the material available in the Case Diary specially in paragraph nos. 1, 2 & 7, had chosen to differ with the police report and taken cognizance of the offence. After cognizance, when the petitioner had specifically asserted by filing an 5 application, in question, for his discharge on the ground that there was no material in the Case Diary, the learned Magistrate having referred to paragraph nos. 2, 7 & 8 of the Case Diary had rejected such prayer for discharge by the impugned order assailed herein. In the opinion of this Court, the statements in paragraph nos. 2 & 7 of the Case Diary, in fact, are the statement of the informant, husband and his wife and paragraph no.8 is the statement of independent person, who too had definitely supported the factum of the occurrence with regard to the assault, which had taken place in the house where he had gone to visit on the eve of Puja. It is true that he had not identified the petitioner but that will not mean that the statement of the informant and his wife can be altogether ignored or the alleged independent witness, examined by the police, could be preferred. In that view of the matter, it cannot be said that the learned Magistrate had committed any error in rejecting the prayer of the petitioner for discharge. This Court 6 would also fail to understand the applicability of the judgment of the Apex Court in the case of Ravi Kant Sharma (supra), inasmuch as, what has been laid down therein is with regard to the scope of statement under Section 161 Cr.P.C. and there it has been held that the opinion of the police officer cannot be taken to be the material constituting investigation of an offence. In the opinion of this Court, the learned Magistrate has not proceeded on any opinion of the police officer rather on the definite statement of the witnesses supporting the factum of the occurrence or participation of the petitioner therein. Moreover at the stage of considering the plea of discharge under Section 239 Cr.P.C. neither the Court is supposed to hold a mini trial nor weigh the evidence on record. Section 239 of the Cr.P.C. reads as follows:- “239. When accused shall be discharged. – If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the 7 Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” In the light of the aforesaid statutory requirement, when the Court had considered the materials on record including statement in the F.I.R., Paragraph Nos. 2, 7 & 8 of the Case Diary as also protest petition filed by the informant against the police and had passed his order after giving an opportunity of hearing to the petitioner and the prosecution, it cannot be said that his findings that charge against the petitioner was not groundless suffer from any such infirmity which can be interfered by this Court in exercise of power under Section 482 of the Cr.P.C. That being so, this Court would not find any merit in this application and the same is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)