IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8340 of 2007 1. JAGDISH YADAV, Son of Khobi Lal Yadav, R/o village Gopinagar, P.S. Kadwa, District – Katihar 2. Sandeep Jha, Son of Late Atul Chand Jha, R/o Nandanpur, P.S. Kadwa, District Katihar ….. Petitioners Versus 1. STATE OF BIHAR 2. Kishan Lal Ray, S/o alam Ray, R/o villae Gopinagar, P.S. Kadwa, District Katihar ….. Opp. Partes . ----------- For the petitioners : Mr. Bhola Prasad, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : None O R D E R Two of the three FIR named accused of Kadwa P.S. Case No. 152 of 2002, G.R. No. 1780 of 2002 have filed this application for quashing of the order dated 12.1.2007 passed therein by the learned 1st Additional Sessions Judge, Katihar, whereby he has rejected their petitions dated 21.7.2005 and 7.7.2005 for their discharge from the proceeding for charges under section 379 IPC and section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as “the SC & ST Act). It appears that one Kishanlal Rai, the informant, submitted a written information before the Superintendent of Police, Katihar, inter alia, alleging that he is a dealer under the Public Distribution System and conducted his business in a fair manner which had caused annoyance to the two petitioners and Basudeo Biswas who were also dealer under the Public Distribution 2 System and they had threatened the informant of getting his license cancelled. It is also alleged that on earlier occasion he had impleaded Jagdish Prasad in Kadwa P.S. Case No. 139 of 2002. It is also alleged that at about 8 A.M. on 12.6.2002 while he was at the saloon of Raj Kumar Thakur on Sonhauli Railway Station getting a shave, petitioner Sandeep Jha appeared and threatened him of reporting him to the S.D.O. since he allegedly had prevented villagers from receiving kerosene oil and assaulted him. It is said that in the meantime co-accused Jagdish Yadav arrived and catching hold of his neck, abused him in filthy language, whereas Basudeo allegedly removed Rs. 7000/-, which he had kept for giving to the moneylender, from his pocket. Thereafter all the three assaulted him but he was saved from further assault by the people of the surrounding area who arrived by then. It is further alleged that the three accused were accompanied by several persons named therein who allegedly were drunk and had also participated in the assault. The informant had approached Kadwa P.S. on 13.6.2002 but as no case was registered, the written complaint was made to the Superintendent of Police, Katihar, who sent the same to the concerned P.S. Assailing the impugned order it has been submitted that the petitioners had been impleaded falsely as they being dealers under the Public Distribution System and there was rivalry between them. In this connection it was pointed out that the S.D.O. had directed accused Jagdish Yadav to distribute kerosene oil to 3 the consumers of Gopi Nagar of which the informant was earlier the dealer and this had caused annoyance to the informant. It is also pointed out that Sandeep Jha, Basudeo Biswas were members of the Vigilance Committee and as the informant was not distributing kerosene oil to the consumers of Nandanpur the two members had forwarded the complaints of the consumers to the concerned authorities. It was also pointed out that the informant was in the habit of launching false cases and reference has been made to several of them and as a matter of fact Kadwa P.S. Case No. 139 of 2002 was quashed by this Court vide order dated 19.1.2007 passed in Cr.Misc. No 52214 of 2006. It appears from the perusal of the impugned order that the learned Additional Judge has dismissed the petition for discharge as he found sufficient materials in the case diary to proceed against the petitioners by framing charges but there is no mention therein of what were the materials that were against the petitioners. The learned court below also does not appear to have taken into consideration the propensity of the informant being a habitual litigant and filing false cases. He also does not appear to have considered the defence of the accused which had been pleaded. True it is that at the stage of sections 227 and 228 Cr.P.C., which are to be read in juxtaposition with each other, even a very strong suspicion founded upon the materials which leads the court to form a presumptive opinion as to the existence 4 of the factual ingredients constituting the offence alleged may justify framing of charges but in exercising such jurisdiction the court cannot act merely as a Post Office or a mouth piece of the prosecution and has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced, any basic informalities and then find whether a prima facie case against accused has been made out. The defence stand is also required to be considered and cannot be ignored. Due regard being had to the facts and the circumstances of the case the impugned order is set aside and the matter is remitted back to the court concerned for fresh consideration in accordance with law as laid down in sections 227 and 228 Cr.P.C.. In the result the application is allowed and the matter is remitted back to the court below for fresh consideration in the light of the observation made above and passing of orders in accordance with law. Patna High Court, Patna. Dated : The 25th of June, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)