IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Revision No. 1309 of 2022

1. Manish Kumar Mishra @ Manish Mishra

2. Ashok Kumar Mishra

…. … Petitioners

Versus

The State of Jharkhand.

…. ... Opp. Party

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CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND

For the Petitioners

: Mr. Indrajit Sinha, Advocate.

: Mr. Akhouri Awinash Kumar, Advocate

: Mr. Harsh Raj, Advocate.

For the State

: Mr. Shailesh Kumar Sinha, A.P.P.

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Order No. 05/ dated 18.09.2023

This Cr. Revision is preferred against the order dated

09.09.2022 passed by the learned Chief Judicial Magistrate,

Saraikella in G.R.No.175 of 2016, arising out of Adityapur P.S.

Case No.40 of 2016 wherein the application for discharge

under Section 239 of Cr.P.C. has been rejected.

2.

Heard learned Counsel of petitioner and learned A.P.P.

on behalf of State.

3.

At the very outset, the learned Counsel for the petitioner

has submitted that during pendency of this Cr. Revision

petitioner No.1-Chandra Kant Mishra has died. The photo

copy of the death certificate issued by the Registrar (Birth &

Death), Tardih Gramin is also produced in which date of death

is shown 05.08.2023 and submitted that in view of the

death of petitioner No.1, he is not pressing this Cr.

Revision on behalf of petitioner No.1. Therefore, this Cr.

Revision is being pressed on behalf of petitioner No.2 and

3.

2

4.

It is also further submitted that there is no evidence

against the petitioners in regard to using any criminal force or

assault to any of the public servant who had gone to remove

the encroachment. There is nothing on record that what kind

of abuse were given with intent to insult so as to provoke the

breach of peace or to commit any offence by the persons

insulted and nothing is on record that threat were made

causing alarm in regard to criminal intimidation. From the

allegations made in the F.I.R. and the statement of the witness

recorded under Section 161 of Cr.P.C. no alleged offence is

made out and in support of his submission, relied on following

case laws:

i.

Manik

Taneja

&

Anr.

Vrs.

State

of

Karnataka & Anr. reported in (2015) 7 SCC

423

ii.

Mohammad Wajid & Anr. Vrs. State of U.P.

& Ors. reported in 2023 SCC Online SC 951

5.

The learned A.P.P. opposed the contentions made by the

learned Counsel for the petitioners and contended that from

the allegations made in the F.I.R. and also evidence collected

by the I.O. the offence alleged is made out against the

petitioners. While framing charge or disposing the discharge

application, the material which is sufficient to proceed against

the accused for the trial is to be considered and also

contended that the appreciation of the evidence is not

permissible at this stage. The court-below has rightly rejected

the discharge application of the petitioner.

3

6.

It is the settled law that while framing the charge or

disposing the discharge application, the court has to take into

consideration the allegations made in the F.I.R. and also the

evidence collected by the I.O. during investigation, if from the

allegations made in the F.I.R. and also the evidence collected

by the I.O., if there are sufficient ground to proceed for the

trial of the alleged offence, the charge should be framed. But if

the court is of definite opinion that from the allegations made

in the F.I.R. and the evidence collected by the I.O. no

ingredient of the alleged offence is made out, the court should

not decline to discharge. At the time of framing the charge the

appreciation of the evidence, marshalling of evidence is not

permissible.

7.

From the allegations made in the F.I.R., it is found that

the F.I.R. of this case was lodged by the informant-Dr. Sanjay

Kumar Ratnakar wherein the allegations are made that he in

compliance of the order dated 11.02.2016 received f