IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.15138 of 2011 Ram Naresh Singh Versus The State Of Bihar & Anr. ---------------------------------- For petitioner:- Mr. Sidhendra Narain Singh, Adv. For the State:- Mr. Hirday Prasad Singh, APP 2/ 3rd November 2011 Heard learned counsel for the petitioner as well as learned APP for the State. 2. Petitioner has challenged the order dated 19.01.2011 passed by Sri A.Rai, Judicial Magistrate, 1st Class, Barh in Complaint Case No. 455C/2006 whereby and whereunder petitioner’s prayer under Section 245 of the Cr.P.C. has been rejected. 3. It has been contended on behalf of the petitioner that earlier he possessed one truck bearing registration no. BPP 9547 which he sold to the complainant, O.P. No.2, Basudeo Prasad and handed over all the relevant documents. The aforesaid Basudeo Prasad instead of getting his name entered into the owner book in place of petitioner, with ulterior motive forbidden. The aforesaid Basudeo Prasad, later on, sold the truck to Vijay Rai. As a dispute cropped up in between Basudeo Prasad and Vijay Rai an accused of default and to have the 2 petitioner’s presence at his side wherein he failed, got this case filed in the background of the fact that no transfer was effected in the name of Basudeo Prasad in the owner book. Handing over of all the documents by the petitioner to Basudeo Prasad is itself incorporated in the complaint petition as well as is also evident from the notices which were corresponded in between the learned counsels on their behalf. It has further been submitted that during continuance of the litigation, there was Panchayati and Punchanama document was prepared wherefrom it is evident that the complainant, Basudeo Prasad had already taken possession over the truck after having it purchased from the petitioner and plied it. Subsequently sold it away to Vijay Rai. The dispute was in between Basudeo Prasad and Vijay Rai over payment of consideration amount which was accordingly solved. The aforesaid Punchnama also discloses that Basudeo Prasad will withdraw the case and that Punchnama happens to be Annexure-4. So, it has been submitted that the order impugned passed by learned lower court should be quashed in the background of Annexure-4, the Punchnama. Further been submitted that the Court can look into and rely over Annexure-4 in 3 getting the order impugned set aside and for that relied upon 2011 (2) BBCJ 143. 4. On the other hand, learned APP opposed the prayer and submitted that existence of Ext-4 has come up during pendency and continuance of the litigation and as such cannot be relied upon. Moreover, it has also been submitted that its genuineness and authenticity is yet to be decided and that would be only after having presence of complainant as a witness. Apart from this, also submitted that the complainant ought to have filed a petition in the background of Annexure-4, before lower court itself had it been a genuine document. Not only this, it has also been submitted that if the contents of the aforesaid Punchanama is to be taken note of, it would be operative only after having payment of two instalments. So, the cumulative effect happens to be that for the present, Ext-4 cannot be trusted and relied upon. So far other aspects are concerned, those are factual one and can be decided only during course of trial. 5. I have gone through the decisions relied upon by the learned counsel for the petitioner. The aforesaid ruling relates with the prayer of discharge of 4 petitioner by a Magistrate in Trial No. 620/2000 against which Cr.Revision was preferred and then before this Court. So far as, legal position is concerned, certain relaxation has been given permitting the court to consider the documents filed on behalf of the accused in support of their plea of discharge if the documents happen to be unimpeachable in its nature. 6. The decision relied by the learned counsel for the petitioner also speaks like so. To further support a reference may have as reported in 2011(3) P.L.J.R. page 100(SC) at para 21 wherein it has been held: “…………………………it is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an inquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents which are beyond suspicion or doubt placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process the High Court may look into the materials which have significant bearing on the matter at prima facie stage. 7. The learned counsel for the petitioner, as 5 stated above, has relied upon solely on Annexure-4. Neither it happens to be under controversy amongst the party nor its origin happens to be before initiation of proceeding rather is a document created during course of continuance of proceeding. So, the document certainly appears to be hit by the theory of lis pendence. 8. Apart from this, the scope of Sections 245 of the Cr.P.C. comes into play only after having evidence recorded under Section 244 of the Cr.P.C. For better appreciation, the relevant sections are quoted below :- “ 244. Evidence for prosecution.-(1) When, in any warrant-case instituted otherwise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. 245. When accused shall be discharged.-.(1) If, upon taking all the evidence referred to in section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. 6 9. After having chronological reading of both these Sections, Section 245 mandates consideration of only those materials which has been produced before the Court at the time of examination in accordance with Section 244 of the Cr.P.C. and the conclusion of the Magistrate should be based thereupon to the extent that no case against the accused is coming out therefrom. The order impugned as well as learned counsel for the petitioner did not divulge that aforesaid Annexure-4 was ever placed before the Court during continuance of evidence on behalf of the prosecution which was going on in accordance with Section 244 of the Cr.P.C nor discloses whether attention of the complainant was drawn towards the contents of the document. Moreover, as stated above, the document impugned appears to be hit by theory of lis pendence. As such, I do not see it prudent to accept Annexure-4 at its face and conclude the proceeding basing thereon at this stage treating it an unimpeachable document. 10. Hence, the petition is found to be misconceived and is accordingly, rejected. perwez ( Aditya Kumar Trivedi, J.) 7