MANVENDRA PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS miscellaneous application has been filed seeking quashing of the order dated 6.10.1999 by which the Sub -Divisional Judicial Magistrate, Sheikhpura refused to discharge the petitioner from the case.

(2.) PETITIONER 's lawyer submitted that in G.R.No. 1/99 a prayer was made before the S.D.J.M., who was holding trial of the case, for discharge of the petitioner on the ground that the case is of the civil nature. This prayer was rejected and hence this miscellaneous case.

(3.) BEFORE I consider the plea of the petitioner raised in this miscellaneous case, I would like to refer to the case of the informant -opposite party as contained in Annexure 1 of this miscellaneous case. On the basis of a written report of Awdhesh Kishore Pandey (Annexure 1) a case was registered in the concerned police station and after cognizance chargesheet was submitted and the case was pending trial when the impugned order was passed. However, on perusal of the written report, it transpires that the complainant -informant had alleged that the crops of his share were stacked in the khalihan (barn) and this paddy crop was taken away by the accused persons including the petitioner and so admittedly it was allegedly a case of theft. The contention of the petitioner 's lawyer is concerned with certain plots of land which was the subject matter of dispute between the parties leading to the proceeding under Section 144 Cr.P.C. However, it was further admitted during the course of submissions by the petitioner 's lawyer that a Mutation Appeal was also pending against the order of the Circle Officer. Be that as it may, it was not a case in which there was an allegation of forcible harvesting of paddy crops from a plot in dispute. The simple question was that the paddy crop of the share of the informant was looted away by the accused persons. So the fact regarding the share of the informant, as claimed by him, was to be proved during the course of trial upon the evidence adduced and it would be very well disproved by the evidence on behalf of the accused persons against the informant. The allegations in the counterclaim in this connection cannot be decided by this court on mere submissions of the petitioner 's lawyer. Petitioner 's lawyer in this connection had further argued that the learned Magistrate was wrong in his approach and he was competent to consider the papers produced by the accused regarding the disputed plots. This question is irrelevant as there is no allegation in this case regarding harvesting of crops from the disputed land. Nevertheless I shall give my opinion whether the court erred in not considering the papers produced by the petitioner. Admittedly, the mutation paper which was under appeal was a contriver dial document and moreover the court at the time of framing of charge is not bound to rely on the papers produced before it. Only such papers which are admitted documents or the documents not in dispute may be considered which may clinch the issue in favour of this and that party, and no other papers. Therefore, I am further of the opinion that the contention of the petitioner 's lawyer that the lower court failed to consider his clinching papers is not acceptable.