- (1.) 2/2.5.2012 Heard learned counsel for the petitioner and learned counsel for the State.
(2.) THE Petitioner has filed this application challenging the order dated 13.7.2011, passed by R.N. Rai, learned Judicial Magistrate, 1st Class, Jamtara in P.C.R. Case No.83 of 2009, whereby, the application filed by the opposite parties No.2 to 4 for discharge, has been partly allowed. The Court below has found that prima facie case has not been found for framing charge against the accused O.Ps. for the offences under Section 408, 468 and 120B of the I.P.C., rather there was sufficient materials for framing charge under Section 427 of I.P.C., and has directed them to remain present in the Court for framing charge under Section 427 of the I.P.C. Petitioner, being the informant has challenged the impugned order on the ground that the prima facie case was made out even under Sections 408, 468 and 120B of the IPC against the accused O.Ps. It appears that a complaint case was filed against the opposite parties No.2 to 4 herein, who are the Executive Engineer, Assistant Engineer and Junior Engineer in the Minor Irrigation Department of the State Government. The case relates to construction of the check dam and it is alleged that the check dam was not constructed on the plot for which sanction was made, rather the check dam was constructed at some distance from the said site on different plot. It also appears that the petitioner filed the complaint petition in the Court of Chief Judicial Magistrate, Jamtara with the said allegations, on the basis of which P.C.R. Case No.50 of 2008 was instituted. The Chief Judicial Magistrate, Jamtara forwarded the complaint case for institution of the police case under Section 156(3) of the Cr.P.C., on the basis of which Jamtara, P.S. Case No.158 of 2008, corresponding to G.R. Case No.352 of 2008 was instituted for the offence under Section 406, 409, 468, 471,427, 120B of the IPC. It appears that upon -2- investigation, the police submitted final form in favour of the accused persons and recommending prosecution against the complainant-informant for the offence under Section 182 and 211 of the IPC. It further appears that the petitioner had filed a protest petition in the Court below which was treated as complaint-petition and upon enquiry the protest/complaint petition, a prima facie case was found against the OPs for the offence under Section 408, 468, 427 and 120B of the IPC by order dated 17.9.2009 passed by the ACJM, Jamtara and the process was ordered to be issued against the O.Ps. The private opposite parties filed the application for discharge in the Court below and the Court below on the basis of the material on record and also taking into consideration the evidence of the witnesses examined by the complainant before charge, had found that no case was made out against the O.Ps. for the offence under Section 408, 468 and 120B of the IPC, however it was found that since the construction materials were put on the land of the petitioner, the offence under Section 427 of the IPC was made out and they were directed to appear in the Court for framing of the charge.
(3.) LEARNED counsel for the petitioner submitted that the impugned order passed by the Court below is absolutely illegal, in as much as, from the material brought on record, the offence is clearly made out under Section 408, 468 and 120B of the IPC against the opposite parties and accordingly, the impugned order cannot be sustained in the eyes of law. Having heard learned counsel for the petitioner and upon going through the record including the impugned order, I find that the Court below has considered the material brought on record, including the evidence of the witnesses examined by the complainant before charge and come to the conclusion that no offence was not made out against the opposite parties under Section 408, 468 and 120B of the IPC.;