Dharmendra Prasad Sahi vs The State Of Jharkhand
2022 Latest Caselaw 349 Jhar

                                       1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr.M.P. No. 2270 of 2021

     Dharmendra Prasad Sahi, son of late Ramanuj Shahi, aged about 55
     years, resident of village Gandhanpura, P.O. Nowama, P.S. Sakurabad,
     District-Jahanabad.
                                               ...... Petitioner
                         Versus

The State of Jharkhand                                  ...... Opposite Party
                           ---------

CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                     ---------
For the Petitioner   : Mr. Yogendra Prasad, Advocate
For the State        : Mr. Ravi Prakash, Spl.P.P.


04/Dated: 09/02/2022

Heard Mr. Yogendra Prasad, learned counsel for the petitioner and

Mr. Ravi Prakash, learned counsel for the State.

2. This petition has been heard through Video Conferencing in view of

the guidelines of the High Court taking into account the situation arising due to

COVID-19 pandemic. None of the parties have complained about any technical

snag of audio-video and with their consent this matter has been heard.

3. The present petition has been filed for quashing of entire criminal

proceeding as well as order dated 10.08.2020 passed by the learned Sub-

Divisional Judicial Magistrate, Ramgarh in connection with Rajrappa P.S. Case

No. 02 of 2017, corresponding to G.R. Case No. 05/2017(A) whereby

cognizance has been taken, pending in the Court of learned Sub-Divisional

Judicial Magistrate, Ramgarh.

4. The F.I.R. was instituted stating therein that on 02.01.2017 at

about 4.50 P.M., search was made by the informant with the help of other

personnel of the Jail, wherein one mobile with SIM and battery was recovered

from under trial prisoner namely Aman Sao who is notorious criminal and

having nexus with Maoist organization.

5. Mr. Yogendra Prasad, learned counsel for the petitioner submits

that the petitioner is a warden. He submits that there is no material against

the petitioner but inspite of that case has been lodged against him and

cognizance has been taken. He further submits that cognizance order is not in

accordance with law.

6. Learned counsel for the State submits that there is no illegality in

the impugned order.

7. The Court has perused the materials on record. Chargesheet has

been submitted and in the chargesheet the name of the petitioner has been

figured. How the mobile in question entered into the jail premises, is the

subject matter of investigation. It has been found to be true in the

chargesheet. It was the duty of the warden not to allow such thing enter in jail

premises. Chargesheet has already been submitted. What are materials in the

chargesheet that is not before this Court. The concerned court after going

through the material on record has taken cognizance. Reference may be made

to the case of "Kaptan Singh Vs. State of U.P." reported in (2021) 9 SCC

35 wherein para 9.1 the Hon'ble Supreme Court has held as under:

"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the

High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material."

8. Mens-rea cannot be decided at the stage of issuing summons.

When prosecution relies upon the materials, strict standard of proof is not to be

applied at the stage of issuance of summons nor to examine the probable

defence which the accused may take all that the Court is required to do is to

satisfy as to whether there are sufficient grounds for proceeding before

summoning the accused, the facts stated will have to be accepted as they

appear on the very face of it for issuance of process against the accused, it

has to be seen only whether there is sufficient ground for proceeding against

the accused and the Court is not required to weigh the evidentiary value of

materials on record. The Court must apply its mind to the allegations in the

charge-sheet and evidence produced and satisfy itself that there is sufficient

ground to proceed against the accused. The Court is not to examine the merits

and demerits of case and not to determine the adequacy of evidence for

holding the accused guilty. The Court is also not required to embark upon the

possible defences. The possible defences need not be taken into consideration

at the time of issuing process unless there is an ex facie defence such as a

legal bar or if in law the accused is not liable, all these are subject matter of the

trial. There is no illegality in the impugned order. Accordingly, the criminal

miscellaneous petition is dismissed.

(Sanjay Kumar Dwivedi, J.) Satyarthi/