ORDER :

1. Heard learned Senior counsel for the petitioner Mr. A.K. Kashyap, Senior Advocate, along with Mr. Anurag Kashyap, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Bishwambhar Shastri, learned A.P.P. appearing on behalf of the opposite party-State.

3. The present application is directed against the order dated 09.02.2012 passed by learned Additional Sessions Judge, IInd, Garhwa in connection with S.T. No. 61 of 2010 arising out of Dhurki P.S. Case No. 12 of 2007 corresponding to G.R. Case No. 156 of 2007 registered under Sections 364/120-B of Indian Penal Code whereby the petition filed by the petitioner for his discharge has been rejected.

Arguments on behalf of the petitioner

4. Learned Senior counsel for the petitioner further submits that the only allegation against the petitioner is that the petitioner being the principal of the school, had permitted one call to be received by the victim boy (age 13 years) saying that the phone call was of his maternal uncle (mama), pursuant to which the victim boy had left the school and went to his house and thereafter, proceeded further. The learned Senior counsel submits that apart from this, there is no further material against the present petitioner. It is not in dispute that as per the present records of this case, the boy has not yet been recovered.

5. The learned Senior counsel submits that initially final form was filed showing lack of evidence against the petitioner and other accused, but subsequently the learned court below had taken cognizance of the offence. He also submits that the order taking cognizance was challenged before this Court in Cr. M.P. No. 1374 of 2009, but subsequently when the matter proceeded before the learned court below, the petitioner filed an application for discharge which stood rejected by the impugned order and accordingly, the Cr. M.P. No. 1374 of 2009 was dismissed as infructuous by this Court vide order dated 13.04.2021.

6. The learned Senior counsel for the petitioner further submits that upon perusal of the impugned order dated 09.02.2012, it is apparent that the learned court has not applied its mind to the materials on record and the impugned order is a non-speaking order, in as much as, the relevant paragraphs of the case-diary have not been specifically referred to in the impugned order. The learned Senior Counsel submits that the impugned order being non-speaking order, the matter is fit to be remanded back to the learned court below for fresh consideration of the materials on record.

7. The learned Senior counsel has also submitted that there is a difference between ‘suspicion’ and ‘grave suspicion’ and the application for discharge of the petitioner has been rejected although the petitioner has been made accused only on mere suspicion and there is no material against the petitioner as such to connect him with the alleged offence. He has referred to a judgment passed by the Hon’ble Supreme Court reported in Gulam Sarbar vs. State of Bihar (Now Jharkhand), (2014) 3 SCC 401 (Paragraph 11 to 24) on the point of basic ingredients for the offence of criminal conspiracy.

Arguments on behalf of the opposite party-State

8. The learned counsel appearing on behalf of the opposite party-State, on the other hand while opposing the prayer, has submitted that the impugned order is detailed order indicating the materials collected during investigation. He also submits that merely because the paragraph number of the case diary has not been specifically referred to, the same is not sufficient to say that the impugned order is a non-speaking order. He has also submitted that the case-diary was also called for by this Court, which is on record and the findings of the learned court below match with the materials collected during investigation and recorded in the case diary. The learned counsel refers to the counter affidavit filed in the present case.

9. The learned counsel for the State also submits that the petitioner is involved in crimi