IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1394 of 2008 BAIDYANATH CHOUDHARY, SON OF LATE LAXMI KANT CHOUDHARY, RESIDENT OF VILLAGE BER, POLICE STATION KUSHESHWAR ASTHAN, DISTRICT-DARBHANGA, AT PRESENT RESIDING AT MOHALLA-BALUPUR, NEAR KURJI HOSPITAL, PATNA……………………………………………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. SHAKTI NARAIN DAS, SON OF GANPATI LAL DAS, RESIDENT OF VILLAGE-KAMRAULI, P.S. SIMRI, DISTRICT- DARBHANGA. ………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Ashutosh Kumar and G.P. Singh, Advocates. For the State : Dr. M.N. Jha, A.P.P. For O.P. No.2 : None. -------- O R D E R The petitioner, who is not named in the F.I.R. of Jhanjharpur P.S. Case No.45 of 1997 giving rise to Sessions Trial No.287 of 2006 but whose name cropped up in course of investigation and against whom chargesheet was submitted, has filed this application for quashing of the order dated 14.9.2007 passed therein by Sri Chandra Bhushan Dwivedi, the learned Presiding Judge, Fast Track Court No.V, Madhubani, whereby he has rejected the petition of discharge filed by the petitioner. One, Shakti Narayan Das, of village Kamrauli, P.S. Simri, the informant, impleaded herein as O.P. No.2, submitted his written report dated 16.6.1997, inter alia , stating that his son, Ajay Kumar Das, had gone to attend the barat of the son of one Rajendra Lal Das - 2 - in the village at the house of one Shivanand Das at on 22.5.1997 and although the other persons attending the barat returned home in the night, his son did not return and an information in this regard was given to Jhanjharpur P.S. on 25.5.1997 and the informant is also said to have searched for his son on his own at various places including the houses of his friends and relatives but no trace could be found. It is further stated that on 21.5.1997 he had settled the marriage of his in the house of one Balbhadra Choudhary of Village Rampatti within Bahadurpur P.S. It is alleged that prior to the settlement of marriage, one Khelanand Choudhary of village Bair within Biraul P.S. through his son Anil Kumar Choudhary had approached him twice for negotiating the marriage of his daughter with the son of the informant and later through his cousin Prabhu Narain Das and Khelanand’s Sharhu, Baidyanath Choudhary. It is further alleged that on 19.5.1997 Baidyanath and his wife had come to the village to attend the marriage ceremony of Prabhu Narain Das’s son and on that occasion they had threatened the informant that if his son’s marriage was not solemnized with Khelanand’s daughter then his son would be caught hold of and his marriage would be solemnized forcibly with Khelanand’s daughter. It is further alleged that on 22.5.1997 Baidyanath was in attendance in the village on the occasion of marriage of Shivanand Das’s daughter and on that occasion Khelanand’s son, Anil, had talked to the son of the informant Binay and having returned to the house of Prabhu Narain he kept a close watch on the informant and his son until they left. It is also alleged that negotiations for marriage of the - 3 - informant’s son was also going on with the daughter of one Govind Narain Das but the informant on 22.5.1997 finally communicated his unwillingness to enter into the marriage and also returned the photograph of the daughter. It is said that the son of Govind Narain came to see the informant on 24.5.1997 and told him that he had come on the advice of Panjikar and to him the informant disclosed about the disappearance of his son. It is further alleged that that apart a litigation was going on in connection with partition of ancestral lands with his brother Mukti Narain Das and that his two sons, Lalit Kumar Das and Mani Bihari Das, were married to the daughters of Rudra Narain Das of Simra and Keo Krishna Das of Belhari. The informant in view of the threat advanced by the petitioner suspected that possibly the petitioner with the intention of getting Khelanand’s daughter married with his son had kidnapped him and concealed him somewhere else. Suspicion was also raised against his own brother, Mukti Narain Das on account of the land dispute. On the basis of the aforesaid written report, Jhanjharnpur P.S. Case No.45 of 1997 was registered under Sections 365, 366 and 120-B I.P.C. against unknown. It is submitted on behalf of the petitioner that it is apparent that only suspicion was alleged against many persons for different reasons including the petitioner but without any basis. It was further submitted that no material whatsoever had come to light in course of investigation to point accusing fingers at the petitioner and as a matter of fact, it is a case of no evidence. The alleged relationship between - 4 - the petitioner and Khelanand is denied. It was further submitted that the F.I.R. was lodged after an inordinate delay of 25 days of the occurrence and no reasons have been assigned therefor. The learned counsel for the petitioner was critical of the impugned order which stated that it was not important to see the materials that would entitle the conviction of the accused but the materials which would entitle the accused to be put on trial. On this aspect, it was submitted that the materials available on record did not even warrant the trial of the petitioner against whom nothing specific had been alleged. The learned counsel for the petitioner was also critical of the distinction made by the trial court in the impugned order between the case of co- accused, Govind Narain Das and that of the petitioner and had , in fact, discharged the said Govind Narain Das. The distinction, so made out, according to the learned counsel for the petitioner, was not based on any evidence or logic and in these view of the matter, the prosecution of the petitioner would amount to an abuse of the process of the court. I have had the occasion to peruse the impugned order and I find no illegality therein. The relevant provisions required to be looked into in such matters are Sections 227 ands 228 Cr.P.C. which are to be read in juxtaposition with each other. Admittedly as observed by the Apex Court in the State of Bihar Vs. Ramesh Singh (AIR 1977 SC 2018) and then again in Dilawar Balu Vs. State, reported in (2002)2 SCC 135 that in exercising jurisdiction under Section 227 Cr.P.C. the Judge cannot act - 5 - merely as a post-office or mouth peace of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before him. The court has undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out but he should not make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. In the instant case, admittedly, the son of the informant has not been traced out as yet although so many years have been passed by but the long impugned order has specifically spelt out the reasons for rejecting the discharge petition filed by the petitioner which includes the materials which are based on the materials available on record. This is not the stage to test the relevancy and bonafides of the reasons assigned and the materials relied upon by the learned trial court to come to a conclusion that a case for proceeding with the petitioner-accused has been made out. In the facts and the circumstances of the case, I find no merit in this application which is accordingly dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 2nd day of July, 2009. Pradeep Srivastava/A.F.R.