Jharkhand High Court
Rajesh Prasad vs The Union Of India Through Cbi ..... ... on 4 December, 2023
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Revisional Jurisdiction)
Criminal Revision No. 375 of 2018
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Rajesh Prasad, aged about 45 years, son of late Rajbansh Prasad, resident of
Takia Bazar, PO, PS and District Sasaram, Bihar ......Petitioner
Versus
The Union of India through CBI ..... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. R. S. Mazumdar, Sr. Advocate
Mrs. J. Mazumdar, Advocate
For the CBI : Ms. Chandana Kumari, AC to ASGI
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Order No.27/ Dated: 04th December 2023
The order dated 14th February 2018 passed in RC.11(S)/2015-
SC.I/CBI/NEWDELHI (in short, RC case) dismissing the petition seeking
discharge in the said criminal case has been challenged on manifold
grounds.
2. The prosecution case is that a First Information Report vide
Kotwali (Hindpidhi) PS Case No. 742 of 2014 was lodged on 19 th August
2014 for commission of the offence under section 498-A read with
section 34 of the Indian Penal Code against Ranjit Singh Kohli and Kaushal
Rani and in course of the investigation Rohit Raman, Ajay Kumar and
Rajesh Prasad (the present petitioner) were found to have harboured the
above-named accused and therefore Kotwali (Hindpidhi) PS Case No. 799
of 2014 was lodged on 7th September 2014 under section 212 of the Indian
Penal Code.
3. The Special Judicial Magistrate (CBI) in the order dated 14th
February 2018 referred to the prosecution case in brief and after a
threadbare discussion on the grounds set forth by the petitioner seeking
discharge in the RC case came to a conclusion that there are sufficient
materials available against the petitioner for framing of the charge and, in
his opinion, a meticulous examination of the materials is not permissible at
that stage.
4. Mr. R. S. Mazumdar, the learned senior counsel for the
2 Criminal Revision No. 375 of 2018
petitioner submits that the materials collected in course of the investigation
do not establish the facts to constitute the offence of harbouring inasmuch as
the allegation against the petitioner do not demonstrate a positive act on his
part so as to establish that he was involved in harbouring the accused. It is
further contended that to constitute the offence under section 212 of the
Indian Penal Code it is necessary to establish that the accused intended to
shield the accused from legal prosecution and mere knowledge that someone
has committed offence is not sufficient to establish that the accused was
shielding that person. It is therefore contended that the materials collected
against the petitioner do not establish that the petitioner had any intention to
conceal or harbour the accused named in Kotwali (Hindpidhi) PS Case
No. 742 of 2014.
5. On the other hand, Ms. Chandana Kumari, the learned counsel
for the CBI submits that at the stage of discharge the Court must proceed on
the assumption that the prosecution materials are true and on that basis it
should be evaluated whether or not necessary ingredients for constituting the
offence are established. The learned counsel further submits that at this stage
defence of the accused should normally not be looked into and the primary
consideration should be that a prima-facie case has been made out. The
learned counsel has referred to the judgment in "State of Gujarat v.
Dilipsinh Kishorsinh Rao" passed in Criminal Appeal No. 2504 of 2023.
6. In the first place, the plea urged on behalf of the petitioner
would require an examination of the materials collected during the course of
investigation. This Court is of the opinion that it was rightly held by the
Special Judicial Magistrate that a meticulous examination of the materials
collected against an accused is not permissible at this stage. As held by the
Hon'ble Supreme Court in "Dilipsinh Kishorsinh Rao" at this stage the
requirement in law is that the Magistrate has to see whether a strong prima-
facie case has been made out against the accused. It is really a stage at
which all that the Magistrate is required to see is whether a prima-facie case
has been made out or not. In a catena of judgments, the Hon'ble Supreme
Court has held that this is really the stage of "suspicion", may be strong
suspicion, that the accused is involved in the commission of crime, that is
how charge is framed against an accused. In "Supdt. and Remembrancer of
Legal Affairs v. Anil Kumar Bhunja" (1979) 4 SCC 274, the Supreme Court
3 Criminal Revision No. 375 of 2018
has observed as under:
"18. It may be remembered that the case was at the stage of framing
charges; the prosecution evidence had not yet commenced. The
Magistrate had, therefore, to consider the above question on a general
consideration of the materials placed before him by the investigating
police officer. At this stage, as was pointed out by this Court in State
of Bihar v. Ramesh Singh the truth, veracity and effect of the evidence
which the prosecutor proposes to adduce are not to be meticulously
judged. The standard of test, proof and judgment which is to be
applied finally before finding the accused guilty or otherwise, is not
exactly to be applied at the stage of Section 227 or 228 of the Code of
Criminal Procedure, 1973. At this stage, even a very strong suspicion
founded upon materials before the Magistrate, which leads him to
form a presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged, may justify the framing of
charge against the accused in respect of the commission of that
offence."
7. Secondly, by now two witnesses have been examined by the
prosecution who have deposed against the petitioner. PW1 who was the
Headmaster at DAV Public School, Sherghati deposed in the Court that Master
Rachit Raj who is the son of Rajesh Prasad (the petitioner) did not attend
classes between 23rd August 2015 to 26th August 2014. PW2 who was working
as Associate General Counsel with Indigo Airlines deposed in the Court that
Rajesh Prasad, Kaushal Rani, Shamita Shaha Prasad, Harimati Kumari and
Rachit Raj had travelled on 23rd August 2014 from Patna to Delhi through
Indigo flight no. 6E493. This witness proved the certified copy of the air ticket.
Now since the trial has commenced and the prosecution started examining the
witnesses two of whom have already tendered evidence, the petitioner cannot
press the discharge petition with reference to the materials collected during the
investigation. The prosecution intends to examine 54 witnesses and proposes to
lay in evidence 64 documents one of which is CDR. The learned Special
Judicial Magistrate has also recorded his prima facie satisfaction as to
sufficiency of material for framing the charge against the petitioner.
8. For the aforesaid reasons, Criminal Revision No. 375 of 2018 is
dismissed.
(Shree Chandrashekhar, J.)
Tanuj/-
