HARDEO SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This Cr. Revision is directed against the order impugned dated 19.11.2009 passed by Shri S.N.Mishra, Judicial Magistrate, 1st Class, Dhanbad in G.R.No. 4228 of 2005(S) arising out of Topchanchi (Hariharpur) P.S. Case No. 161 of 2005 by which the petition filed on behalf of the petitioner under Section 239 Cr.P.C. for his discharge was rejected and the learned Judicial Magistrate found sufficient material against the petitioner for framing of charge under Section 25(1-b), 26/35 of the Arms Act and he was called upon to stand charged.

(2.) The prosecution story in short was that the informant officer-in-charge of Hariharpur police station recorded his self statement stating, inter alia, that in the night of 22.10.2005 while he was on patrolling duty with the other police officers, he received information from one Md. Nasim Hussain that his son was shot dead by one Rinku Singh at Pawapur Petrol Pump and the assailant Rinku Singh escaped on a Hero Honda motorcycle No. B.R.-17F/7778 towards Topchanchi. However, on chase Rinku Singh was arrested by Topchanchi Police and the culprit confessed his guilt before the police that the pistol used in such killing was kept in the computer room of Pawapur Petrol Pump behind the Almirah. Pursuant to such confessional statement recovery of such pistol was made along with the cartridges which was seized in presence of the witnesses and the accused further submitted that the said pistol was handed over to him by the partner of the said Petrol Pump late Kuldeep Singh for security after a dacoity was committed in such Petrol Pump and that the petitioner who was the partner had knowledge about such pistol being given to Rinku Singh. The police registered two F.I.Rs. one under Arms Act and another for the substantive offence of murder.

(3.) Learned Counsel Mr. P.K. Mukhopadhayay submitted that Rinku Singh @ Rakesh Kumar Singh was acquitted for the charge under Section 302 I.P.C. The Counsel further pointed out that the police after investigation registered the case under Arms Act and submitted charge-sheet against several accused persons including the petitioner without any material in the case diary. There was no material against the petitioner except the confessional statement of the co-accused, which is hit by Section 25 of the Arms Act and that admittedly no firearm or ammunition was recovered from the possession of the petitioner. Learned Judicial Magistrate had rejected the petition of the petitioner filed under Section 239 of the Code of Criminal Procedure without application of the judicial mind and without referring as to what prima facie materials were available against the petitioner for proposing charge against him and others for the alleged offence under Section 25(1-b), 26/35 of the Arms Act. This Court in catena of decisions held that whenever any petition is filed for discharge, the Court is required to point out at least, prima facie, materials available against the accused but in this case the Court was silent and did not disclose such materials so as to find it to be a fit case against the petitioner for framing of charge and therefore the order impugned cannot be sustained.