Criminal Miscellaneous No.14423 OF 1998 IN THE MATTER OF AN APPLICATION u/S 482 CODE OF CRIMINAL PROCEDURE -------------- Arjun Trivedi Son of Late Rajeshwar Trivedi, resident of Village-Jamshari, P.S. Bind, District-Nalanda --------------- Petitioner Versus THE STATE OF BIHAR ------- Opp. Party ------------ For the petitioner : Shri Birendra Kr.Sinha, Sr.Advocate For the State : Dr.Mayanand Jha, A.P.P. -------------- P R E S E N T THE HON'BLE SHRI JUSTICE RAKESH KUMAR Rakesh Kumar,J The petitioner, who at the relevant time was Assistant, Gr.III in F.C.I., Food Storage Depot, Phulwarisharif, was made an accused along with other in a case for offences under Sections 406,409,120B of the Indian Penal Code. The allegation in the said case was that a shortage of 36 bags of sugar was found in the Depot and, as such, criminal case was instituted. After investigation police submitted chargesheet and thereafter the learned court below took cognizance of the offence. The petitioner earlier had approached this court vide Cr.Misc.No.4724 of 1991. However, the said petition was disposed of. This Court observed that : “In my view, if a petition for discharge is - 2 - filed the trial court shall consider as to whether there is any evidence in the case diary against the petitioner or not. In case, it comes to the conclusion that there is no evidence in the case diary against the petitioner in that event, it shall have no option but to discharge the petitioner. In case, however, the trial court is of the view that there is evidence in the case diary against the petitioner in that event it shall state in the order as to what is the evidence against the petitioner in the case diary. With the aforesaid direction this application is disposed of.” In the light of the said order dated 7.8.1991 passed in Cr.Misc.No.4724 of 1991, the petitioner filed a petition for his discharge before the court below. While pressing the petition of discharge, only ground was taken by the petitioner that on the relevant date, he was absent and was not on duty. It was asserted that from 4th July 1988 to 11th July 1988 he remained out of Station for official work. In the case, occurrence had taken place, as submitted on behalf of the petitioner before the court below, in between 4th July 1988 and 11th July 1988. The learned Magistrate after hearing the parties in detail rejected the discharge petition by his order dated 6.8.1992. Aggrieved with the order of rejection of his discharge petition vide order dated 6.8.1992, the petitioner again - 3 - approached this Court invoking its inherent jurisdiction under Section 482 Cr.P.C. Learned Senior Counsel appearing on behalf of the petitioner has heavily relied on an order dated 21.8.1997 passed by this Court in Cr.Misc.No.11940 of 1992. In the said case, one of the co-accused, namely, Kamla Prasad Mahto got relief from this Court. In the said case vide order dated 6.8.1992, learned Sub Divisional Judicial Magistrate, Danapur had rejected the discharge petition of co-accused Kamla Prasad Mahto. Learned Senior counsel submits that the case of this petitioner is similar to the case of Kamla Prasad Mahto. The only distinction in between the case of Kamla Prasad Mahto and this petitioner is that Kamla Prasad Mahto was posted as Assistant Grade-I in the said Depot and was Incharge of Shed No.3. However, the petitioner was Assistant Grade-III in the same office. Otherwise, according to him, there is no distinction between the petitioner and Kamla Prasad Mahto’s case. Learned counsel appearing on behalf of the State on perusal of the case diary submits that the case of the petitioner is not exactly similar to Kamla Prasad Mahto . It has come during the investigation that Kamla Prasad Mahto had taken charge from this petitioner and occurrence had taken place during the period when he had not taken charge. I have also examined the materials available on - 4 - record. The impugned order itself indicates that the learned Magistrate while hearing the discharge petition had examined the records and he had come to a conclusion that on the relevant date the petitioner was on duty and he had put his signature on the Attendance Register. He found photo copy of the Register, which was produced by the petitioner, containing some interpolation and over-writing. Accordingly, he had rejected the plea of alibi of the petitioner. So far Annexure-6 i.e. order dated 21.8.1997 passed in Cr.Misc.No.11940 of 1992 is concerned, it is evident that this Court had considered the plea of accused Krishna Prasad Mahto that the present case was registered on the basis of report given by Kamla Prasad Mahto and this Court had also found that on the relevant date he was not on duty. The materials available on record indicates that the case of the petitioner is not similar to the case of Kamla Prasad Mahto . Moreover, this Court is not required to conduct a roving enquiry with a view to come to a conclusion as to whether actually the petitioner was absent or not or the learned Magistrate at the stage of hearing discharge petition had examined all these things in a detail manner. The requirement at the stage of charge is to see whether there is probability of commission of offence by an accused or not. Only prima facie case is to be looked into at the stage of charge. Moreover, the order rejecting the discharge petition - 5 - gives some detail, which indicates that the court was primarily satisfied that it was not a case for discharge. I am of the view that there is no error or illegality in the impugned order. There is no merit in the petition. Accordingly, the petition stands dismissed. In this case by the order dated 3.12.1998, proceeding in Tr.No.902/92 arising out of Danapur P.S. Case No.302 of 1988 was ordered to remain stayed during the pendency of the present case. Since the petition is rejected, the interim order of stay stands automatically vacated. Let this order along with carbon copy of the case diary be communicated to the court below forthwith. Patna High Court,Patna Dated: the 18th March,2010 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J)