DEEP NARAYAN YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) ORDER :- This application in revision under Ss. 397 and 401 of the Code of Criminal Procedure (in short 'the Code') is directed against that part of the order dated 5-8-1996 passed by Shri N. Pandey, Judicial Magistrate, Birpur at Supaul in G.R. Case No. 463/92 by which he had directed to issue summonses against the present petitioners.

(2.) From the facts of this case it would appear that the Station Superintendent of Raghopur Railway Station submitted a written complaint on 9-10-1992 at Raghopur police station alleging therein that on 15-9-1992 he found two bags containing Rs. 55,005/- and 41,774/- missing at the relevant time. One Jayant Kumar Srivastava was in-charge of this cash. However, he is said to have handed over the charge of these two bags to petitioner, Deep Narayan Yadav, who worked till 8 a.m. on 15-9-1992. When the informant took charge of the cash from Shri Yadav he could detect that some cash was missing. As a matter of fact the informant had slept at the railway quarter of one Rameshwar Yadav, fitter in the Railways. Petitioners and his son Ajay Kumar, Deep Narayan Yadav, was also residing therein. While the informant had slept on its Varandah he has kept his bag containing the key of safe inside the house. In the morning he found this key kept at the another place in the bag and subsequently he could detect the missing of two bags containing the cash mentioned above. The FIR was registered and after completing of the investigation the police submitted the charge sheet which is Annexure-2 to this petition. This charge sheet will show that the S.I. of police of Raghopur police found that a case was made out only against the Assistant Station Master, Jayant Kumar Srivastava under Ss. 379 and 420 of the Indian Penal Code. So far as accused Laxmi Prasad Yadav and Deep Narayan Yadav (petitioner Nos. 1 and 2) were concerned the Investigating Officer found the allegations

(3.) At the time of framing of the charge the parties were heard by Shri N. Pandey, Judicial Magistrate to whose Court the case was transferred for disposal. Before the learned trial Court accused Jayant Kumar Srivastava filed a petition that since no case is made out against him as per the case diary no charge- sheet should be framed against him. In the meantime, this accused had also filed a Criminal Revision No. 91/95 before this Court for quashing the order taking cognizance of the offence against him. In the said criminal revision this Court directed that the question of discharge of this accused will be considered at the time of framing of the charge by the trial Court. Under this circumstance this accused filed a petition for discharge before Shri N. Pandey, Judicial Magistrate, named above. The learned Magistrate has by his order dated 5-8-1996, after a detailed discussions of the materials available in the case diary, found that there was no evidence against accused Jayant Kumar Srivastava in the case diary on the basis of which any charge could be framed against him. However, in this very order he has observed that on the perusal of the entire case diary he could find that a prima facie case against the present petitioners was made out. He, accordingly, discharged accused Jayant Kumar Srivastava but he directed to issue summonses to the present petitioners (petitioner No. 3, is the son of petitioner No. 1) for standing their trial in the case. It is against this order that the present petitioners have filed this revision application.