IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45034 of 2007 UMESH PRASAD SINGH son of Late Nirbhay Narain Singh, resident of Mohalla Ghoshi Tola, P.S. Kotwali, Dist. Munger. At present working as Special Assistant, State Bank of India, Main Branch, Rajbati, Munger. Versus 1.STATE OF BIHAR 2.Rita Das, daughter of Late Bajrangi Das, resident of Mohalla Kabristan Road, Jamalpur, P.S. Jamalpur, Dist. Munger. At present working as Junior Management Grade-I, State Bank of India, Jamalpur Branch, Jamalpur, Dist. Munger. ----------- 4 9/4/2010 Heard Mr. Sumant Singh, learned counsel for the petitioner and Mr. Amar Nath Deo, learned counsel appearing on behalf of the opposite party no.2. Prayer in this application is to quash the order dated 29-30.7.2007, whereby and whereunder, prayer for discharge of the petitioner has been rejected. Counsel for the petitioner while assailing the impugned order has raised the following two issues, namely:- (i)There is gross delay of almost 18 years, inasmuch as, the allegations are of the year 1985, whereas, the criminal prosecution by way of First Information Report (F.I.R.) was launched in the year 2003. (ii)There is a counter case filed by the petitioner, which if taken into account would make the 2 present prosecution a malicious prosecution. Counsel for the opposite party no.2, on the other hand, has submitted that at the stage of framing of charge the accused while seeking discharge has to satisfy the Court that even if allegations made as a whole are accepted on its face value, no offence would be made out and continuance of such trial would be an abuse of process of the Court. In this context he has also referred to the specific averment made in the First Information Report by the opposite party no.2 giving details of the several episodes of the incidents inflicting humiliation as also mental and physical torture by the petitioner who happens to be the colleague of co-worker in the same establishment of the State Bank of India, Munger Branch. In the opinion of this Court, learned counsel for the petitioner is not correct in submitting that the incident reported in the First Information Report dated 25.7.2003 is of the year 1985. What has been actually stated by the Informant-opposite party no.2 in the F.I.R. is that she was posted in the State Bank of India, Munger Branch on the post of Clerk-Cum-Cashier from the year 1985 and the petitioner who was already working there in the same Branch was repeatedly indulging in an indecent and immoral activity. The repeated taunts leasing crossing the limit decency has been explained by the opposite party no.2, the Informant which by itself is sufficient to make out an offence punishable under section 356 of the Indian Penal Code. 3 It has to be noted that apart from the details of such repeated indecent and immoral activities as narrated by the Informant in the F.I.R. there is also a direct allegation of making advances by the petitioner for sexual abuse of the Informant is the matter does not rest there, inasmuch as, the Informant has already alleged that even after transfer of the petitioner from Munger Branch of the State Bank of India to the Munger Bazar Branch he continued with his owns lout against the Informant and had kept on visiting the place of posting of the Informant for pressurizing her to get married to his servant/driver so as to exploit her sexually. The narration of the Informant regarding the petitioner putting pressure on the management for her transfer from Munger Branch to an insignificant Branch at Safiabad by virtue of holding the post of an office bearer in the Worker’s Union of the Bank causing mental torture, depuration to her is again a separate act which cannot be clubbed with the first posting of the Informant at Munger Branch in 1985. It has to be kept in mind that all these statement was given by the Informant before the Police Officer in presence of the Chief Manager of the Bank in the Bank premises itself and thus it would be difficult for this Court to accept the submission of Mr. Singh, learned counsel for the petitioner that an incident of 1985 alone has been made subject matter of the present pending criminal prosecution against the petitioner. In this context it would be also useful to refer to the findings recorded in the impugned 4 order where this aspect of the matter was gone into by the court below wherein it has been held that:- “The F.I.R. and evidence recorded in case diary reveals that the accused has start to harass and use criminal force by causing the fear annoyance to the Informant with intention to out rage her modesty since 1985 and F.I.R. and evidence also reveals that such act of the accused continued in another branch of the S.B.I. where the Informant posted and F.I.R. evidence also reveals that such act of the accused against the Informant continued till 25.7.2003 i.e, on the date of lodging of the F.I.R…….” Thus, in view of aforesaid finding it cannot be said that the allegation against the petitioner was confined to only a solitary incident rather there were such series of acts in different branches of the Bank till the date of filing the complaint and therefore the submission of the learned counsel for the petitioner that the impugned order rejecting prayer of discharge is vitiated on account of non consideration of the aspect concerning the delay in launching the prosecution has to be also noted for its being rejected. At this place it has to be also kept in mind that ever since the cognizance was taken by order dated 5.11.2003 the petitioner has made it his habit of moving the higher Courts only for delaying the prosecution. The petitioner had initially assailed the order taking cognizance by filing a revision application, Cr. Rev. No.14 of 2004 and when the same was dismissed on 9.5.2005 he had moved this Court in Cr. Misc. No.31379 of 2005, which also was disposed of only with some observations, but without 5 interfering with the order taking cognizance. In fact, the court below by the impugned order dated 29/30-7-2007 has made a threadbare discussions of all these aspects and therefore it becomes clear that it is the petitioner who has successfully kept the prosecution pending for a period of seven years even when there are sufficient materials at least for continuing and completing the trial of the petitioner. The plea of the petitioner that he has also filed a criminal case, F.I.R. against the Informant-opposite party no.2 or that the Informant-opposite party no.2 on earlier occasions had made similar allegation against some other employees of the Bank cannot be taken into consideration at the stage of discharge. All these materials being directly linked with defence of the petitioner they at best being his evidence in defence can only be taken into consideration at the time of his trial. The concept of discharge under section 239 of the Cr.P.C. in fact leaves the trial Court with little option but to consider the police report and the document sent with it under section 173 of the Cr.P.C. only to find out as to whether charge against the accused is groundless. At that stage neither the defence of an accused can be looked into nor the Court can hold the mini-trial for considering the prayer of discharge of the accused. Judged in this background this Court would find no error in the impugned order rejecting prayer of the petitioner for his discharge and consequently the present application being 6 devoid of any merit must be and is hereby dismissed. Before parting with, this Court, having noted that it is the petitioner who has been conveniently, constantly delaying the trial, would direct the court below to ensure that trial of the petitioner is taken up on day to day basis and is concluded within a period of nine months from the date of receipt/production of a copy of this order. The trial court would also be under obligation to submit a report to this Court as soon as the trial of the petitioner is concluded. With the aforementioned observations and directions this application is dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)