- (1.)By this petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr. PC), the order dated 16-7-2011 as passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Revision No. 21(3) of 2010, whereby the challenge as projected against the order for framing of charge against the petitioners was shot down.
(2.)The prosecution against the petitioners herein was launched at the instance of one Kshirmohan Debnath who filed an ejahar to the Officer-in-charge, East Agartala Police Station, alleging amongst other things that the petitioners and their relative, one Sajal Sarkar fell down and had stolen away two Gamai trees from his land. The land from where those two trees were allegedly taken away was in the occupation of the informant and was duly parted by the original owner. Thereafter, the petitioners and that Sajal Sarkar kept the said trees in the house of one Swapan Ghosh of the locality. The informant also suspected involvement of that Swapan Ghosh in the alleged incident of theft. The informant assessed the value of the trees at Rs. 10,000/- approximately. On the basis of the said ejahar dated 28-7-2008, East Agartala PS. Case No. 115/08, under Sections 379 of IPC was registered. After investigation, the charge-sheet was filed on having a prima facie case against the petitioners. The Investigating Officer, who filed the charge-sheet, stated in the brief fact of the case that in course of investigation the previous IO also issued a letter to the Forest Range Officer, Sadar, to furnish the details regarding some wooden logs which were seized from Baldakhal, the place of occurrence of the case. The Forest Range Officer intimated that as no claimant appeared before them, the Forest Department confiscated the same. The previous I.O. also examined and recorded the statement of the Forest Range Officer. The charge-sheet was filed vide East Agartala PS. C/S. No. 32/2009, dated 7-3-2009 under Section 379 of IPC against the present petitioners by the Investigating Officer who completed the further investigation. The other accused person was not sent up for trial as no materials were available against him during the investigation. On taking cognizance, the case was taken up for framing of charge. On 30-3-2010, the said Judicial Magistrate took up the matter for hearing on framing of the charge. In the hearing, learned defence counsel raised a question that the informant was not the owner of the land at the relevant point of time and no possession was taken by the informant from the original land owner. He further submitted that there is no eye-witness of the alleged occurrence. The Judicial Magistrate discarded the said contention holding that there is no legal requirement that only the registered owner can lodge the ejahar unless the alleged offence is covered by the provisions of Sections 195 to 199 of Cr. PC. Relevant part of the observations of the Judicial Magistrate is excerpted hereunder :
"In the said statement recorded u/S. 161, Cr. PC. of the original land owner, Keshab Ghosh, I find that the said witness categorically stated that before selling his land, he has not sold out the 2 (two) trees in question to anybody. The other witnesses, in their statements recorded under Section 161, Cr. PC. though have stated that the original land owner sold out the 2 (two) trees in question for Rs. 1,100/- to the accused persons, but in my opinion, at this stage there is no evidence before the Court to rely on the statements given either by the said witnesses or by the original land owner. This observation also applied to the contention raised by Ld. Defence Counsel that the seized goods do not tally with the statement of the complainant given in the FIR. It would be pertinent to add here that the letter addressed to the O.C., East Agartala RS. by the Forest Range Officer, Sadar Range, Agartala, as present in the case record, does not mention anything about the valuation of the seized trees.

Ld. Defence Counsel also argued that the case firstly ended in FR (T) and later, on the basis of a new and afreshed investigation, charge-sheet was submitted against the accused persons. But the I.O. submitting the charge-sheet, did not re-examine the earlier witnesses and no explanation is given by him for this, in the charge-sheet.

I find that the 10 submitting the charge-sheet has recorded the statements of 3 Nos. of new witnesses, u/S. 161, Cr. P.C. Now, those statement cannot at all be negated or thrown out altogether due to any lacuna, if at all, on the part of the 1.0.

Regarding the decisions cited by the Ld. Defence Counsel, 1997 AIR(SC) 2041 I find the principle enshrined regarding framing of charge-do not find application in this case.

I find that the contentions raised by Ld. Defence Counsel are all matters which are subject to proof during the trial of the case. It is also found that the alleged guilt of the accused persons are something about which nothing can be told at this stage without conducting full fledged trial of this case.

Hence, I reject the objection raised by Ld. Defence Counsel against framing of charge in this case."

(3.)Being aggrieved by that order dated 30-3-2010 as passed in G.R. No. 614/2008 by the learned Judicial Magistrate, the Criminal Revision was filed in the Court of the Sessions, West Tripura, Agartala, being Criminal Revision No. 21(3)/2010 and the said Criminal Revision was disposed of by the impugned order dated 16-7-2011, whereby the learned Sessions Judge, West Tripura, Agartala, has recorded his reasonings as under:
"It appears East Agartala RS. Case No. 115/08 was ended in charge-sheet, submitted before the Ld. Chief Judicial Magistrate, West Tripura, Agartala and in consideration of that charge-sheet, the Ld. Chief Judicial Magistrate had taken cognizance of offence punishable under Section 379 of IPC against the accused-petitioners and the case was transferred to the file of Ld. Judicial Magistrate, 1st Class, Court No. 4, Agartala for trial and disposal.

The Court below heard Ld. counsel of both sides on 22-3-2010 and passed impugned order dated 30-3-2010 directing framing of charge against both the accused persons for commission of offence punishable under Section 379 of IPC.

Being aggrieved and dissatisfied with the order directing framing of charge, the accused-petitioners preferred the present revisional application on different grounds.

Ld. counsel of the petitioners has submitted that the FIR was lodged by a person alleging theft who had no dominion over the property and that after investigation, police submitted final report, but on reinvestigation, charge-sheet was filed against the accused persons, but it was without any cogent evidence. The evidence and materials on record does not justify framing of charge for commission of offence under Section 379 of IPC. In the circumstances, Ld. Counsel prayed for allowing the revisional application and discharging the accused persons from the liability of the case.

Ld. P.P., on the other hand, has submitted that the Ld. Magistrate has passed a reasoned order touching all the points raised by the Ld. counsel for accused persons and there is no defect in the order to interfere by this Revisional Court. Ld. P.P., therefore, prayed for dismissal of the revision application.

Section 397, Cr. P.C. empowers the Sessions Court to call for and examining the records of any proceeding pending before any inferior criminal Court situated within its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of such inferior Court.

In the present case, as I find, cognizance was taken considering the materials on record and thereafter, Ld. Magistrate heard both sides and arrived at a conclusion that charge should be framed against the accused persons on the basis of the materials already on record.

Sections 239 and 240 of Cr. P.C. is relevant here for reference which runs as follows :-

"239. When accused shall be discharged.

If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any. of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

240. Framing of charge.

(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."

Under Section 239, Cr. P.C. the Magistrate is empowered to discharge the accused only in the event that after consideration of the materials on record, the Magistrate found the allegation to be groundless.

Section 240, Cr. P.C. has prescribed that if the Magistrate has found that there are grounds for presuming that the accused has committed an offence triable under that Chapter, the Magistrate is competent to frame charge.

In the present case, as I find, the points raised by the Ld. Defence Counsel are points relevant to be raised at the time of trial and not before. It is premature to say that there is no criminal offence committed by the accused persons. There is no illegality, impropriety or incorrectness in the order passed by the Ld. Magistrate. I find no reason at all to interfere with the order and hence, the revision application stands dismissed."