IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16770 of 2007 IRFAN MALLICK, S/o. Soaib Rizwi, R/o. Choudhary Mohalla, P.S. Town, District- Katihar. Versus STATE OF BIHAR Counsel for the Petitioner: Mr. Vindhya Keshwar Prasad Singh, Sr. Advocate. Mr. Nadimul Hasan, Advocate. Counsel for the State: Mr. Parmeshwar Mehta, A.P.P. ----------- 06. 09.04.2010 Through this application the petitioner has challenged the order dated 26.03.2007 of the learned Addl. Sessions Judge, F.T.C. No. V, Katihar as passed in Sessions Trial No.159 of 2005, whereby the petitioner’s prayer for discharging him under Section 227 Cr.P.C. has been rejected by the Court- below, who has ordered for framing of charge against him under Sections 489(a), 489(b), 489(c), 489(e) and 120B of the I.P.C. The brief facts giving rise to the prosecution case vide F.I.R. No.17 of 2005 under Sections 489(a), 489(b), 489(c), 489(e) and 120B of the I.P.C. was that when on confidential information that some persons were engaged in circulation of fake currency notes, the police conducted raid and search as a result of which the four F.I.R. named accused were found 2 in possession of several notes of 500 denomination for a total sum of Rs.75,000/- and the recovery of the notes were made in different numbers from separate accused and they accepted that they were engaged in circulation of fake currency notes. The apprehended accused also confessed before the police party that Irfan Mallick, the petitioner was the main supplier of the fake notes to them. On this information the police party searched the house of the petitioner but any recovery could not be made. At the same time the police party, on the information as given by the apprehended accused, asked the apprehended accused Jiyaul Haque to contact the petitioner Irfan Mallick on his Cellphone No.9431260181 for verifying and confirming if he was involved in the supply of the currency notes and when Md. Jiyaul phoned this petitioner on that Cell Phone number the petitioner entertained the call and he stated that fake currency notes were available to be supplied and he called him (Md. Jiyaul) at his residence on 3 12.01.2005 at 9.30 p.m. for supply of fake notes. This phone conversation was heard by the members of the police party on the speaker of the phone which was kept switched on during the conversation. On these materials charge sheet was submitted against the petitioner and other accused persons. Learned counsel for the petitioner submitted that in this case there is nothing except the confession of the co-accused regarding the complicity of the petitioner. He also submitted that the learned trial-court has discussed that there is sufficient material in the case-diary but he has not mentioned any specific material for framing the charges. No doubt, the learned trial Judge does not mention any specific ground but it is evident that he has relied on the grounds which are available on record right from the time of the institution of F.I.R. and which facts are mentioned in the F.I.R. itself. Learned counsel for the petitioner cited a decision in the case Kashmira Singh V. State of Madhya Pradesh reported in 2005 Cr. L.J 4828 4 Bombay, wherein it has been held that no charge can be framed only on the basis of the confession of the co-accused. There is no controversy over the principle of law as stated but in the instant case it is not the confession of the co-accused but the other materials also stated in the F.I.R. that the petitioner invited the co-accused in the in the presence of the police party for supplying the fake notes. Learned counsel for the petitioner also cited a decision in the case of Niranjan Singh V. Jitendra Singh reported in 1990 S.C. page- 1963, wherein it has been held that when the material placed before the Court raise grave suspicion against the accused, charge can be framed against him. Learned counsel submitted that no doubt there is material to raise suspicion but it is not grave. But I fail to agree with the submission. In view of the materials under the conversation, I find that the suspicion is grave to indicate the complicity of the petitioner. Learned counsel for the petitioner submitted that in para-64 of the case-diary it was mentioned 5 that from the print out of the said Cell phone No.9431260181 any remarkable material was not disclosed. But any print out has not been brought on record. At this stage learned counsel for the petitioner made a prayer to call for the case-diary for making submission on the basis of the materials in the case-diary. In this context, I would like to mention that this application was filed on 9.04.2007.Thereafter the case-diary was called for and the same was also received in this Court. When the case was called on the petitioner did not appear to argue, hence this case was dismissed on account of non-prosecution. Thereafter, the petitioner filed a restoration petition and the case was restored. It was again taken up on 01.05.2009 for hearing after the restoration of the case and when the case was called out the petitioner again did not appear, hence the case was dismissed for the second time on account of non-prosecution. It was after the dismissal for the second time that the petitioner filed another restoration petition which was 6 allowed and then the case is before this Bench for hearing. Thus, it is clear that for two occasions when the case was before this Court and the case-diary was available the petitioner did not appear and chose the case to be dismissed on account of non-prosecution. He kept this application pending for three years in this manner. Today a fresh prayer is being made to call for the case-diary for lingering the matter in one way or the other. Considering the conduct of the petitioner as above, I am not at all inclined of calling for the case- diary and keeping the case pending and hence the submission in this regard is refused. On the basis of the materials, I find that the learned court-below was justified in ordering for framing of the charges. Therefore, finding no merit this case is dismissed. Mkr. (C.M. Prasad, J.)