IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33976 of 2007 Tapeshwar Singh, S/O Late Laxmi Singh, resident of village Thahar, P.S. Khajauli, District- Madhubani. ........Petitioner. Versus 1. The State of Bihar. 2. Ashok Kumar, S/o Ram Swarath Yadav, resident of village and P.S. Bisfi, District-Madhubani. .......... Opposite Parties. ----------- For the Petitioner :- Mr. Anant Kr. Bhasker, Advocate. For the State :- Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No. 2 :- None. ------------ O R D E R The petitioner who is one of the accused of Sessions Trial No. 300 of 2007, arising out of Madhubani Town P.S. Case No.409 of 2006, registered under Sections 363, 366(A), 448, 342 and 323/34 of the Indian Penal Code has prayed for quashing of the order dated 11. 06. 2007, passed therein by the learned Presiding Judge, Fast Track Court No. II, Madhubani, whereby the petition for discharge filed by the petitioner has been rejected. The aforesaid police case was registered on the basis of a written report dated 26. 12. 2006 of Ashok Kumar, who inter alia stated that about 3.30 P.M. one Santosh Kumar Singh, the tutor of his children, along with six-seven others entered into his house. When his wife who was in the kitchen came out to inquire about the reason for their coming inside the house, she was pushed inside the room by Santosh Kumar Singh and his associates and the door was locked from outside and his daughter namely, Rasmi Kumari, aged about 14 years, was forcibly - 2 - abducted and taken away in a car. The informant claims to have made inquiry and came to know the names of the remaining abductors apart from Santosh Kumar Singh who were seen taking away his daughter towards Hospital road. It is also stated that in course of kidnapping, one pair of sleepers and broken necklace of Santosh Kumar Singh were left behind in the house. It is also stated that as the informant was busy searching for his daughter hence, delay was made in lodging the written report. After due investigation, the Police submitted a charge sheet under Sections 363, 366 (A) and other allied Sections of the Penal Code and in the said charge sheet abducted Rasmi Kumari’s age was given as 14 years. After commitment of the case to the court of Sessions, a petition for discharge was filed on behalf of the petitioner on the ground that after submission of the charge sheet Police submitted Final Report before the Learned Chief Judicial Magistrate, Madhubani, stating that charge sheet was submitted inadvertently when as a matter of fact it was a mistake of fact. It has been submitted that the main allegation of kidnapping was against accused Santosh Kumar Singh and Police did not find the case to be true so far the petitioner was concerned and, hence, he should be discharged. The said petition for discharge did not find favour in the Sessions court. Hence, this application has been filed before this Court. The submission on behalf of the petitioner is that the Police having realised the mistake of having submitted the charge sheet against - 3 - him rectified the position and subsequently filed a Final Report before the learned Chief Judicial Magistrate, showing it to be a mistake of fact. It was further submitted that Rasmi and Santosh Kumar Singh had solemnised their marriage in Chandigarh. It was also submitted that the victim girl, Rasmi Kumari, was a major as would appear from the Marriage Certificate granted by Divya Anand Cultural Organisation (Regd.), Chandigarh, wherein she stated her age to be 18 years and the marriage agreement (Annexure-3) disclosed her date of birth as 12. 10. 1988 and age to be 18 years. It is further submitted that on return her statement under Section 164 Cr.P.C. was recorded by a Judicial Magistrate at the behest of the police where she stated her age as 19 years and the Medical Board in its report dated 13. 3. 2007, had opined her age as 18 years. On the aforesaid premise, it was submitted that the said Rasmi Kumari being a major had solemnised marriage with Santosh Kumar Singh and no case under Section 366 (A) I.P.C. is said to have been made out as she was free to express her own decision. So far as the merit of the case in respect of discharge of the petitioner is concerned, it appears from the impugned order of the Sessions Court that the petitioner apart from being named in the F.I.R. along with others was also seen by Dilip Kumar going with the accused including the petitioner towards hospital road. Several other witnesses in the statement under Section 161 Cr.P.C. have stated regarding involvement of the petitioner in the crime, although, the victim girl herself in her statement under Section 164 Cr.P.C. has not named the petitioner. It further appears from perusal of the Case Diary and other materials - 4 - available on record that the learned Sessions Court came to the finding that sufficient materials were available for framing of the charge against the petitioner. It is by now well settled law by a catena of decisions that at the stage of Section 227 and 228 Cr.P.C. which are to be read in juxtaposition with each other, the court is only required to see and be satisfied whether the accusation made against the accused is frivolous or there is some material for proceeding against him. At this stage, this Court is not required to see the probabilities of the case ending in conviction. There is another aspect of the matter. Admittedly a charge sheet had been submitted against the petitioner and cognizance was taken in accordance with law. The subsequent Final Report submitted by the Police, showing the earlier submission of the charge sheet as a mistake of fact can not be considered as ground for discharge. Learned Sessions court, in my opinion, is very much correct in rejecting the prayer advanced by the learned counsel for the petitioner and I do the same more so when the age of the victim girl is in dispute. Accordingly, I do not find any merit in this application and the same is dismissed. (Abhijit Sinha, J.) Patna High Court, Patna. Dated: The 10th of July, 2009. Mohan Pal/N.A.F.R.