- (1.) HEARD the learned counsel for the petitioners and the learned counsel for the State. No one appears on behalf of Opposite Party No.2 in spite of repeated calls. Yesterday also, when the case was taken up, no one had appeared on behalf of Opposite Party No.2 in spite of repeated calls. Petitioners have filed this application challenging the order dated 7.8.1999 passed by Sri N. K. Agarwal, learned Judicial Magistrate, 1st class, Ranchi, in Complaint Case No. 252 of 1997, whereby, the application filed by the petitioners for discharge was rejected by the Court below and it was found that there were sufficient material on record to frame charge against the petitioners for the offence under Sections 323 / 120B of the Indian Penal Code.
(2.) FROM perusal of the complaint petition, it is apparent that so far as the allegation of assault is there, it is specific against the co-accused R.N.Vaid, who is not a petitioner in the present case. It is further apparent from perusal of the complaint petition that even the presence of the petitioners were not shown in the complaint petition at the time of assault on the complainant by the said R.N.Vaid. The petitioners have been named in paragraph 2 of the complaint petition, in which, it is alleged that for the aforesaid occurrence, the complainant was eager to lodge the F.I.R in Namkum P.S. for safety of his life, but on the way, he saw the accused petitioners watching him very aggressively and these petitioners are alleged to have threatened the complainant with life if the complainant went to the police station for lodging the F.I.R. So far as the petitioners are concerned, except this allegation, there is no other allegation against them in the complaint petition. It appears that in the enquiry stage, the statements of the complainant and his witnesses were recorded, on the basis of which the prima facie case was found against the petitioners also, and the petitioners were summoned to face the trial. The petitioners filed the application for discharge which was rejected by the Court below by the impugned order dated 7.8.1999. Learned counsel for the petitioners submitted that the petitioners have been falsely implicated in this case. It has been submitted that there is no allegation against the petitioners to have assaulted the complainant, still the Court below has found the material against the petitioners for the offence under Sections 323/120B of the I.P.C., which is absolutely illegal. Learned counsel accordingly, submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law. Learned counsel for the State, on the other hand, has submitted that there is allegation against the petitioners also in the complaint petition and as such, the offence is made out against them. After having heard the learned counsels for both sides and upon going through the record, I find that there is no allegation against the petitioners in the complaint petition to have entered into any criminal conspiracy with the main accused, who is alleged to have assaulted the complainant. Furthermore, it is apparent from the complaint petition that even the presence of these petitioners are not alleged at the time of assault upon the complainant. The only allegation against the petitioners is to have threatened the complainant while he was going to the Police Station later on.
(3.) IN my considered view, on this allegation, no charge could be framed against the petitioners for the offence under Sections 323/120B of the Indian penal Code, as there is nothing on the record to show that these petitioners either conspired with the main accused or had assaulted the complainant. In this view of the matter, the impugned order passed by the Court below finding sufficient material for framing charge against the petitioners for the offence under Sections 323 /120B of the I.P.C., cannot be sustained in the eyes of law. For the foregoing reasons, the impugned order dated 7.8.1999 passed by Sri N. K. Agarwal, learned Judicial Magistrate 1st class, Ranchi, in Complaint Case No. 252 of 1997, qua the petitioners only, is hereby, set aside. It is made clear that the impugned order, so far it concerns the other accused persons, shall continue to be operative. This application accordingly, stands allowed.;